' MUHAMMAD ASHRAF BHATTI, J.---On 4-11-1999 Mehboob Elahi, (P.W.7) reported to the local police that his minor son Aqeel Abbas 7/8 years old, was present along with other children and his wife in the house when on 28-10-1999, Baba Barkat Ali, (appellant) came here and gave a rupee each to the children to buy toffees from the shop; that when all the children went out the appellant too came out of the house into the street and took away Aqeel Abbas in view of other children- on his bicycle on the pretext to giving him a ride; and that when he did not return home late in the evening his wife Mst. Safia (P.W.13) became worried and enquired about his whereabouts from his daughter Umay Kanwal who told her that he was taken away on bicycle by the appellant. He further disclosed that despite having contacted him, Barkat All had been dilling dallying on one pretext or the other. So, accordingly a criminal case F.I.R. No,620 was registered on 4-11-1999 against Barkat Ali (appellant) at Police Station Gulberg, Faisalabad under section 365, P.P.C. Later on the dead body of Aqeel Abbas was recovered in putrefied condition near from the boundry of Agriculture University.
2. Almost three Investigating Officers conducted the investigation of this case. P.W.2 Nazakat Ali A.S.-I. Was the first Investigating Officer who on 4-11-1999 visited the place of occurrence and prepared the site-plan Exh.P.W.2/A, regarding abduction of Aqeel Abbas. He recorded the statement of Mst. Safia Bibi (mother of the deceased)under section 161, Cr.P.C. On 13-11-1999 Aurangzeb, Draftsman (P.W.4) handed over him scaled site plans (in duplicate Exh.P.W.2/B and Exh.P.W.2/C) of the place of abduction of the minor boy as well as the scaled site plans (Exh.P4/A and Exh.P4/B) of the place wherefrom the dead body was recovered. Thereafter, the investigation was entrusted to Dilbar Hussain, S.I./P.W.6 who recorded the statements of Ejaz Ali P.W.10 and Shaukat Ali P.W.11 under section 161, Cr.P.C. Regarding last seen evidence. He further stated that through wireless message he came to know that a dead body of a male child was lying on the boundry of Agriculture University at 5-p.m. Which was identified by Mst. Safia Bibi, mother of the deceased boy as well as Ejaz Ali P.W.10.
' He prepared injury statement Exh.P.W.6/A, inquest report Exh.P.W.6/B and then got the offence under section 302, P.P.C. Added in the F.I.R. (Exh.P.W.17/A). He sent the dead body of the deceased for postmortem examination and prepared rough site-plan of the place wherefrom it was found i.e, Exh.P.W.6/C. Manak Khan, Constable produced before him the last-worn clothes of the deceased i.e, Shirt P.W.3/1 and Patloon P.W.3/2 vide memo Exh.P.W.3/A, testified by the P.Ws. whose statement were also recorded under section 161, Cr.P.C. On the same day, due to his accident, the investigation was transferred to Arshad Ali, S.I./P.W.9 who on 15-11-1999 arrested Barkat Ali, appellant. According to him, during remand, the appellant disclosed in the presence of Mukhtar Ahmed and Shaukat Ali, P.Ws. That after the occurrence he had concealed the weapon of offence i.e, Chhuri in the park of Awami Colony underneath `Saphaide tree (Eyclyptic) and got recovered blood-stained Chhuri Exh.P.W.9/A, which was made into sealed parcel. He then got registered a separate case under section 13 of the Arms Ordinance, 1965 against the appellant.
3. The post-mortem examination on the putrefied body of Aqeel Abbas was conducted by P.W.5 Dr. Ghulam Mustafa, Medical Officer of Allied Hospital, Faisalabad. According to him, the dead body was of a human child of about 5 to 10 years. It was in advanced stage of putrefaction. The head hairs were of a male patern and the body was dressed in green designed trouser and shirt (ready made). Its sex could not be determined in absence of private parts due to advanced putrefaction.
Maggots were bounding. Skull and scalpe was intact. Skull was disarticulated from rest of the body.
Scalp was covered with male pattern hair which were missing at places. Eye balls were absent.
Face was covered with black and dry skin. There was loss of soft tissues around the neck. Cervical spine was visible. Ribs were disarticulated. Chesr cavity and abdominal cavity could not be identified. However, small putrefied mass from abdomen was taken and sent to chemical examiner, Lahore. On receipt of report (Exh.PY) of the Chemical Examiner he opined that cause of death could not be determined in this case. Exh.P.W.5/A is the correct carbon copy of his post- mortem report which was endorsed by him whereas Exh.P.W.5/B and Exh.P.W.5/C are the pictorial diagrams of the injuries. Exh.P.W.5/E is the report of his final opinion.
4. After completing the necessary formalities, the Investigating Officer submitted the challan in the Court where the appellant was formally charge sheeted on 19-3-2002 under section 364-A, and 302, P.P.C. To which he pleaded not guilty and claimed trial.
5. After evaluating the evidence brought on record, the learned Additional Sessions Judge, Faisalabad vide his judgment dated 23-4-2002 came to the conclusion that the prosecution had established its case beyond reasonable doubt against the appellant. Therefore, he was convicted under section 364-A/302, P.P.C. And sentenced to death on each count. He was burdened with fine of Rs,10000 under section 302 (b) and in default thereof to further undergo rigorous imprisonment for six months. He was also held liable to pay compensation to the tune of Rs,50000 in terms of section 544-A, Cr.P.C. To the legal heirs of the deceased, recoverable as arrears of land revenue and in default thereof to undergo further imprisonment for six months' R.I.
6. The appellant has challenged the vires of his said conviction and sentence through Criminal Appeal No,220-3 of 2002. Along with the criminal appeal filed by the appellant as cited above, there is a Murder Reference No,338 of 2002 under section 374 Cr.P.C. Received from the learned trial Court seeking confirmation of death sentence awarded to Barkat Ali appellant. We therefore, intend to dispose of both these matters through this single judgment.
7. In order to prove its case the prosecution mainly relied upon P.W.10 Ejaz Ali and P.W.11 Shaukat Ali who provided the last seen evidence of the occurrence in the manner that they had seen the boy in the company of the appellant on 28-10-1999 while were heading towards the Agriculture University Gate at about 2-00 p.m. Complainant's wife Mst. Safia (P.W.13), P.W.14 Zahid Raza and P.W.10 Ejaz Ali .Identified the dead body of Aqeel Abbas. P.W.13 Mst. Safia Bibi also deposed in limine with the deposition of F.I.R. And tried to support the case of the prosecution in her way. P.W.12 Mukhtar Ahmed is the recovery witness of bloodstained Chhuri as described above. The remaining witnesses are more or less of formal nature and so need not to be mentioned.
8. After tendering report of Chemical Examiner, Exh.PY and that of the, Serologist Exh.PY/1, the prosecution closed its evidence.
9. The appellant was examined under section 342, Cr.P.C. Who denied the very factum of having committed the offences under reference. In an answer to a question as to why the P.Ws. Deposed against him, he replied "that Ejaz P.W. Had illicit relations with Mst. Safia and he used to come to her house in absence of her husband when Mst. Safia was my tenant. I admonished them and asked Ejaz to stop coming. The complainant party took it ill. I then got vacated my house. Mst. Safia then went as tenant of Ejaz as admitted by her as P.W. It was for this reason that I was falsely involved in this case by the complainant in connivance with police and Ejaz P.W. The P.Ws. Have falsely deposed at the instance of Mst. Safia." The appellant, however, did not opt to record his statements on oath in terms of section 340(2), Cr.P.C. In dis-proof of the allegations against him.
10. The learned trial Court after hearing the arguments of the learned counsel for the parties recorded the conviction and awarded sentence to the appellants as mentioned above.
11. We have heard the learned counsel for the appellants as well as the learned Deputy Prosecutor- General appearing for the State in the light of the above evidence produced from both sides.
12. It may be stated at the outset that despite and effort made at the trial by the prosecution to set up a motive but we find that it is case of no motive on the part of the prosecution. Mainly its case is rested upon the last seen evidence provided by Ejaz Ali P.W. 10, Shaukat Ali P.W-11 and wife of the complainant Mst. Safia Bibi P.W.
13. Mst. Safia Bibi (P.W. 13), however, tried to set up a motive at the trial as aforesaid that the appellant had damaged their T.V. And price thereof was being recovered in instalments from him, which nourished a grudge in his heart and to take its avenge he took life of her son. But neither this fact was mentioned in the F.I.R. Nor there is any solid or convicting evidence on record to support it.
Even her husband/complainant P.W.7 did not utter a single word about such a motive. So her statement can't be relied upon.
13. As to last seen evidence, we may state here that accusation against the appellant is that he was seen taking Aqeel Abbas on his bicycle on the pretext of giving him a ride. The wife of the appellants is not witness of this piece of evidence. In her presence the appellant gave rupee one each to the children present there, in the house. His asking about the whereabouts of the deceased minor from her daughter confirms this view. Moreover, there are no details of the children present in the house of those in whose presence the minor was allegedly taken away from a street in broad-daylight nor we find any explanation of absence of any person of the locality in the street.
Even Mst. Umay Kanwal was not examined at the trial to support the factum of Aqeel Abbas having bicycle ride with the appellant. She was the most important and natural witness in whose presence his real brother was being taken away by and old man without any reason, no matter he had at a point of time, their landlord and frequent visitor to their house as disclosed in the F.I.R.
14. Coming to the statements of Ejaz Ali P.W. 10 and Shaukat Ali P.W. 11, both are interested witnesses, Ejaz Ali was the landlord of the complainant whereas Shaukat Ali is the uncle of the deceased's mother. Both have no direct relationship inter se, of any kind, to give some credence to their statements regarding their presence together when allegedly they saw the appellant taking the deceased towards university gate. Shaukat Ali is permanent resident of a village in Sheikhupura and his presence at a particular place, at a given time with an unconcerned man Ejaz Ali, P.W.10 does not appeal to reason specially when it is on record that they did not go there together. P.W.Ll Shaukat Ali says that he had to go to Mandi and Ejaz Ali, P.W.10 was already standing there and so allegedly they both saw the appellant and the deceased together. Shaukat Ali admits that he didn't question the both as to where they were going. He claimed that the deceased was his 'Bhanja' but still he was unconcerned. Further, Shaukat Ali told all about this to the complainant family after the dead body was found which is highly unbelievable. The other one's conduct is also not above board. He says that in the same evening he had told the couple about the missing child and on his disclosure they had gone to the appellant. He further says that it was in his knowledge that the appellant had shown his ignorance about the deceased's whereabouts but still he didn't bother to go with deceased's parents to confront the appellant despite having visited them 5/7 times before the dead body was recovered. The complainant or his wife also didn't ask any one else to accompany them for the purpose. So, had Ejaz Ali disclosed to the deceased's parents about this in the same evening, names of Ejaz Ali and Shaukat Ali would have been reflected in the F.I.R. Due to the same reason perhaps the name of Mst. Umay Kanwal was also not mentioned in the F.I.R. In view of this position of the case we find no reason to believe these two witnesses and so, therefore, last seen evidence, which otherwise is considered to be a weak type of evidence, furnished by them in this case is neither trustworthy nor appears to be convincing in the given circumstances.
15. As regards recovery of Churri, it was allegedly recovered from an open and an unattended place having also free access to general public. If we look at the alleged dates of missing of the child and that of arrest of the accused, the appellant if he had committed this crime would not have afforded to keep the weapon of offence safe at such an open place accessible to all that could otherwise easily be disposed of in the intervening period. Since the dead body of the deceased was found in the an advanced stage of putrefaction, the doctor observed no mark of injury, whatsoever, at the time of post-mortem examination, recovery of Churri, becomes of no consequence. Its recovery was also witnessed by interested witnesses as mentioned above. No bicycle was also recovered from the appellant, a 70 years of man as admitted on record. So therefore, it is hardly believable that a person of such an advanced age would have been offered ride in the manner suggested by the prosecution. In these circumstances we find that recovery of Chhuri cannot be relied upon regarding which no independent witnesses were associated specially when people at the time of its recovery were also available as shown on record and the place being also accessible to all and unattended too. Reference is made to Muhammad Ayoob's case reported as 1974 PCr.IJ 501 and Maznoor Ahmed v. The State reported as .1988, PCr.U 1515.
16. It may also be important to note that Ejaz Ali P.W.10 was the landlord of the complainant at the time of making statement in Court whereas prior thereto the complainant along with his family members had been putting up in the house of the appellant as his tenant and then a quarrel took place between them that became the cause to vacate it. So, therefore, it appears that it is in this backdrop of the case that the couple might have suspected Barkat Ali for his alleged involvement in this case. On the contrary, there is no strong, convincing direct or indirect evidence available on record in any form to connect the appellant with- the commission of offences under reference. It appears that the learned trial Court merely swayed away by the gravity of the offence as a minor was brutally murdered, rather than having serious note of the facts brought on record during trial which it failed to properly appreciate and instead appears to have become emotional and so awarded extreme penalty of death to a person against whom the prosecution had miserably failed to make a case beyond reasonable doubt, which indeed was not warranted for safe administration of justice.
17. The net result of the above discussion is that evidence brought on record is neither convincing nor confidence inspiring. Recoveries effected are not believable. Absence of marks of injuries on the dead body of the deceased do not furnish corroboration of the recovery of Chhuri as alleged.
Therefore, the same cannot be relied upon. Highly corrtradictory and unnatural statements have been given by Ejaz Ali, P.W.10 and Shaukat Ali, P. W.11 to furnish last seen evidence which cannot be believed upon and so there remained number of missing links required to reconcile to establish a case on the basis of circumstantial evidence. Nor it is found compatible with the innocence of the appellant to justify conviction against him. Reliance is placed on Rehsam Bibi v. Sheerin Khan (1977 SCMR 1416) So, therefore, we find that the impugned judgment is not sustainable in the eyes of law.
18. Resultantly, the Criminal Appeal No,220-J of 2002 filed by Barkat Ali, appellant is accepted, the impugned judgment of the learned trial Court is set aside and the appellant is acquitted of all charges and directed to be released from jail forthwith, if not required in any other case.
19. In the light of the above, the Murder Reference No,402 of 2002 is answered in the negative and the death sentence on each count under sections 364A/302, P.P.C, awarded to Barkat Ali, appellant is not confirmed.