Muhammad Ashraf Bhatti, J.--On 4.11.1999 Mehboob Elahi, (PW-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 there 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 Aged 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 (PW-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 Ali had been dilling dallying on one pretext or the other. So, accordingly a criminal case FIR No, 620 was registered on 4.11.1999 against Barkat Ali (appellant) at Police Station Gulberg, Faisalabad under Section 365 PPC. 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. PW-2 Nazakat Ali, ASI was the first Investigating Officer who on 4.11.1999 visited the place of occurrence and prepared the site-plan Exh. PW-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 (PW-4) handed over him scaled site-plans (in duplicate Exh. PW-2/B and Exh. PW-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./PW6 who recorded the statements of Ejaz Ali PW-10 and Shaukat Ali PW-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 boundary of Agriculture University at 5 p.m. which was identified by Mst. Safia Bibi, mother of the deceased boy as well as Ejaz Ali PW-10. He prepared injury statement Exh. PW-6/A, inquest report Exh. PW6/B and then got the offence under Section PPC added in the FIR (Exh. PW-17/A). He sent the dead body of the deceased for post mortem examination and prepared rough site-plan of the place wherefrom it was found i,e, Exh. PW-6/C. Manak Khan, Constable produced before him the last worn clothes of the deceased i,e, Shirt PW-3/1 and Patloon PW3/2 vide memo Exh.PW-3/A, testified by the PWs whose statements 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./PW-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, PWs that after the occurrence he had concealed the weapon of offence i,e, Chhurri in the park of Awami Colony underneath Saphaida' tree (Eyclyptic) and got recovered blood stained Chhurri Exh. PW9/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 PW-5 Dr. Ghulam Mustafa Medical Officer of Allied Hospital Faisalabad. According to him the, 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 pattern and the body was dressed in green designer 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 walls 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 examine 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.PW5/A is the correct carbon copy of his post mortem report which was endorsed by him whereas Exh.PW5/B and Exh.PW5/C are the pictorial diagrams of the injuries. Exh.1.PW5/E is the report of his final opinion.
4. After completing the necessary formalities, the I.O. submitted the challan in the Court where the appellant was formally charge sheeted on 19.3.2002 under Sections 364-A and 302 PPC 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 PPC 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, 50,000/- in terms of Section 544-A. Cr.P.0 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-J 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 judgment.
7. In order to prove its case the prosecution mainly relied upon PW-10 Ejaz All and PW-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 they were heading towards the Agriculture University Gate at about 2.00 p.m. complainant's wife Mst. Safia (PW-13), PW-14 Zahid Raza and PW- 10 Ejaz Ali identified the dead body of Aqeel Abbas. PW-13 Mst. Safia Bibi also deposed in line with the deposition of FIR and tried to support the case of the prosecution in h3r way. PW-12 Mukhtar Ahmed is the recovery witness of blood-stained Chhurri as described above. The remaining witnesses are more or less of formal nature and so need not 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 PWs deposed against him, he replied that Ejaz PW 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 PW. It was for this reason that I was falsely involved in this case by the complainant in connivance with police and Ejaz PW. The PWs 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 argument of the learned counsel for the parties recorded the conviction and awarded sentences 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 an 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 PW-10, Shaukat Ali PW-11 and wife of the complainant Mst. Safia Bibi PW-13. Mst. Safia Bibi (PW-13), however, tried to set up a motive at the trial as aforesaid that the appellant had damaged their TV and price thereof was being recovered in installments 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 FIR nor there is any solid or convincing evidence on record to support it. Even her husband/complainant PW-7 did not utter a single word about such a motive. So, her statement cannot be relied noon.
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 appellant 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 or of those in whose presence the minor was allegedly taken away from a street in broad day light 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 appellant. She was the most important and natural witness in whose presence his real brother was being taken away by an 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 FIR.
14. Coming to the statements of Ejaz Ali PW-10 and Shaukat Ali PW-11, both are interested witnesses, Ejaz Ali was the landlord of the complainant whereas Shaukat All 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, PW-10 does not appeal to reason specially when it is on record that they did not go there together. PW-11 Shaukat Ali says that he had to go to Mandi and Ejaz Ali, PW-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 All and Shaukat Ali would' have been reflected in the FIR. Due to the same reason perhaps the name of Mst. Umay Kanwal was also not mentioned in the FIR. 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 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 swa yed 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 Chhurri as alleged.
Therefore, the same cannot be relied upon. Highly contradictory and unnatural statements have been given by Ejaz Ali, PW-10 and Shaukat Ali, PW-11 to furnish last seen evidence which can not 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 Resham 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 2003 is answered in the Negative and the death sentence on each count under Sections 364-A/302 PPC, awarded to Barkat Ali, appellant is Not Confirmed.