JUDGMENT MANZOOR AHMAD MALIK, J.---This judgment shall dispose of Criminal Appeal No.1793 of 2005 (Asif Rizwan v. The State) and Murder Reference No.712 of 2005, sent by the learned trial Court, for confirmation or otherwise, of the sentence of death awarded to the appellant, as both these matters have arisen out of the same judgment dated 26-10-2005 passed by the learned Additional Sessions Judge, Okara, whereby, appellant was convicted, for the murder of minor son of the complainant named Waleed (deceased), under section 302(b), P.P.C. And sentenced to death with a further direction to pay a compensation of Rs.2,00,000 (Rupees two lac only) to the legal heirs of the deceased as provided under section 544-A, Cr.P.C. In default whereof to further undergo S.I. For six months. However, benefit of doubt was extended to two co-accused of the appellant, namely, Muhammad Ramzan and Liaquat Ali and they were acquitted from the charge.
2. Brief facts of the case, as given by P.W.4. Muhammad Javed Naseem (complainant) in the F.I.R.
(Exh.PB/1) are that on 30-9-2004 in the area of Chak No.14/4-L-East Ahmad Nagar, his (complainant)'s minor, son aged 5/6 years, namely, Waleed (deceased), went to the nearby mosque in order to attend the precession of Shab-e-Qadr which lasted after Isha prayer but he did not return due to which the complainant became worried and started his search. Ghulam Mustafa, Muhammad Sarwar and Naseem Akhtar apprised the complainant that at about 6-30 p.m., they saw Waleed (deceased) in the company of Asif Rizwan (appellant) and his two acquitted co- accused, namely, Muhammad Ramzan and Liaquat Ali while proceeding towards canal. As per F.I.R., the complainant had suspicion that his son has been abducted for killing by Asif Rizwan (appellant). The motive stated in the F.I.R. Was that in the year 1988-89, there was a quarrel between the complainant and Ramzan acquitted co-accused on account of passing from the street.
3. During the course of investigation, Asif Rizwan (appellant) was arrested and after its completion, challan was prepared and submitted against the appellant and his two acquitted co-accused, namely, Muhammad Ramzan and Liaqat Ali, before the learned trial Court, copies were distributed to them as required under section 265-C of the Code of Criminal Procedure, charge was framed, to which, they pleaded not guilty and claimed trial.
4. In order to prove the ocular account, the prosecution produced as many as 11 witnesses during the trial. The appellant, along with his co-accused, was examined under section 342, Cr.P.C. He neither produced any evidence in defence nor opted to depose on Oath as required under section 340(2), Cr.P.C. In an answer to the question "why this case against you and why the P.Ws. Have deposed against you", the appellant, in his statement recorded under section 342, Cr.P.C., stated as under:-- "It is a false case. All the P.Ws. Are closely related inter se. The real facts of the case are that Waleed had gone out of the house about 15 days prior to the registration of this case and was not traceable. The complainant party had been searching for him for 15 days but no clue of Waleed was made out. None of the P.Ws. Had ever seen Waleed in my company and company of my other co-accused. I was falsely involved in this case due to suspicion and my co-accused Muhammad Ramzan and Liaqat Ali were also falsely involved in this case for being my close relative as Muhammad Ramzan, my co-accused is my father and Liaqat co-accused is my Chachazad.
Bones, allegedly recovered from the area of Chak No.18-B/7-R were neither of Waleed nor those were identifiable and nor those were identified by any of the P.Ws. The complainant had lodged this case against me and my co-accused by setting up false witnesses who were either relatives or tenants of him. I was falsely involved in this case with ulterior motive only to blackmail me and to extort money from me in garb of this false case because complainant is a greedy man. The P.Ws.
Have deposed falsely against me due to their close relation with the complainant."
However, after conclusion of the trial, the learned trial Court convicted and sentenced the appellant and acquitted his two co-accused, as mentioned above.
5. Learned counsel for the appellant, in support of this appeal, contends that there is no direct evidence against the appellant and the prosecution case is based on circumstantial evidence. The last seen evidence has been furnished by P.W.7, Muhammad Sarwar and P.W.8, Naseem Akhtar which is to the effect that on 30-9-2004, they had seen Waleed (deceased) in the company of Asif Rizwan (appellant) and his two acquitted co-accused, namely, Muhammad Ramzan and Liaqat Ali; that the evidence of both these P.Ws. Is not reliable for the reason that had these two P.Ws. Seen the deceased in the company of the appellant and his companions on 30-9-2004 then the complainant of the case, who is real father of the deceased, would have informed the police much before 15-10-2004. As far as recovery of bones is concerned, learned counsel contends that there is no evidence on the record even to show . That the allegedly recovered bones were of the deceased child of the complainant; that even the police, did not prepare the recovery memo of those bones; that so much so there is no postmortem report on the file and the report Exh.PJ, issued by the Department of Anatomy, King Edward Medical College, Lahore, is of no avail to the prosecution because in the said report, the doctor has only stated that the bones are of human child and no age of the deceased stood mentioned therein; that in the Inquest Report (Exh.PH) it is mentioned that the bones were being taken by the grand-father of the deceased for the purpose of burial on 15-10-2004 and if this is the position then the question arises as to which bones were sent to the King Edward Medical College for analysis; that there is no mention of description of clothes, which the deceased child was wearing, so, recovery of clothes on the pointation of the appellant, if any, of the deceased child are of no avail to the prosecution; that the complainant of this case and the other P.Ws. Have made dishonest improvements while appearing before the Court in order to strengthen the prosecution case; that in the complaint, it is clearly mentioned that Waleed (deceased) was allegedly seen by P.W.7. And P.W.8. In the company of the appellant and his two acquitted co- accused, namely, Muhammad Ramzan and Liaqat Ali but surprisingly P.W.4.
Muhammad Javed Naseem (complainant) sworn an affidavit to the effect that two acquitted co- accused, namely, Muhammad Ramzan and Liaqat Ali were innocent and that he had no objection to the grant of bail to Muhammad Ramzan and Liaqat Ali and even their acquittal from the case and this fact is admitted-by him while appearing before the Court; that the statements of P.W.9.
Muhammad Ishaq and P.W.10. Iftikhar Ahmad are of no avail to the prosecution because name of the appellant does not figure in the examination-in-chief of both these witnesses which statements, even otherwise, are inadmissible in evidence; that as a matter of fact there is no evidence on the record to prove that Waleed (deceased) was murdered by the appellant or even that lie died; that in the F.I.R., the complainant (P.W.4.) has stated that his son (Waleed) was abducted for murder because in the year 1988-89 he had a quarrel with Muhammad Ramzan (acquitted co-accused of the appellant) on account of passing through the street. But while appearing before the Court and realizing the weakness of the motive besides the above motive he also stated that the said Ramzan is also involved in "Jadu Toona" and "Taveez Dhaga" and that the prosecution has failed to prove its case against the appellant beyond any shadow of doubt and that the appellant is entitled to acquittal.
6. On the other hand, the learned Deputy Prosecutor-General for the State, while vehemently opposing this appeal, contends that the appellant is nominated in the F.I.R.; that the prosecution has proved its case against the appellant through reliable evidence which consists of last seen, pointation of the place of throwing the dead body of the deceased child by the appellant and his two acquitted co-accused into the canal, recovery of last worn clothes of the deceased child coupled with the fact that the complainant had no reason to falsely implicate the appellant and that the appeal filed by the appellant against, his conviction and sentence be dismissed.
7. We have heard learned counsel for the parties at length, have given anxious consideration to their arguments and have also scanned the evidence on record with their able assistance.
8. The child (Waleed) of the complainant (P.W.4.) became missing on 30-9-2010 at about Ishavela, the matter was reported to the police by P.W.4. Muhammad Javed Naseem (complainant) on 15- 10-2010 at about 2-00 p.m., the formal F.I.R. (Exh.PB/1) was registered on the same day at about 2-10 p.m. While the distance between the place of occurrence and the Police Station was about 3 kilometers.
9. It is very unfortunate that child (Waleed), son of the complainant (P.W.4.) was missing and later on could not be traced out, but; at the same time, we are conscious of the fact that for conviction of an accused especially on the charge of murder, there must be some reliable, legally admissible and confidence inspiring evidence; particularly, when the prosecution case is solely based on circumstantial evidence.
10. Admittedly, it is an unseen occurrence and the prosecution case hinges on the circumstantial evidence, therefore, utmost care and caution is required for reaching at a just conclusion of the case. It is settled by now that circumstantial evidence should form such a continuous chain that its one end touches the dead body and other to the neck of the accused. In this regard, guidance has been sought from the judgments of the Apex, Court of the country. In The State v. Manzoor Ahmad (PLD 1966 . Supreme Court 664), the Hon'ble Supreme Court of Pakistan, at page 680, has been pleased to observe as under:-- ............. It is no doubt true that in a- case resting wholly on circumstantial evidence the Court must, as observed by Wills in his Treatise on Circumstantial Evidence, 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 information upon any other reasonable hypothesis than that of his guilt'. It is also equally well settled that 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 much less a doubt conjured up by preconceived 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 above view was reiterated in the case of Asadullah and another v. State and another 1999 SCM R 1034. In Ch. Barkat Ali v. Major Karam Elahi Zia and another (1992 SCM R 1047), at page 1055, it was held as under:-- Law relating to circumstantial evidence that proved circumstances must be incompatible with any reasonable hypothesis of the innocence of the accused. See Siraj v. The Crown (PLD 1956 FC 123)........... In a case of circum- substantial evidence, the rule is that no link in the chain should be broken and that the circumstances should be such as cannot be explained A away on any hypothesis other than the guilt of the accused."
In Sarfraz Khan v. The State (1996 SCM R 188), at page 191, it was observed as under:--it is well- settled that circumstantial evidence should be so inter-connected that it forms such continuous chain that its one end touches the dead body and other neck of the accused thereby excluding all the hypothesis of his innocence."
In Altaf Hussain v. Fakhar Husain and another (2008 SCM R 1103), at page 1105, while discussing the impact of circumstantial evidence, the learned Apex Court has been pleased to observe as under:- - Needless to emphasis that all the pieces of evidence should be so linked that it should give the picture of a complete chain, one corner of which should touch the neck of the deceased and other corner to the neck of the accused. Failure of one link will destroy the entire chain."
11. So far as the case in hand is concerned, we have scanned the whole evidence with the able assistance of learned counsel for the appellant and the learned D.P.-G. The prosecution evidence, can be divided into the categories of (i) last seen, (ii) recovery of bones, (i.e) recovery of last worn clothes of the deceased, (iv) pointation of the place from where the deceased was thrown into the canal, (v) the statements of the witnesses which, as per prosecution, amounts to extra judicial confession and (vi) motive.
12. P.W.4. Muhammad Javed Naseem, who is real father of the missing child and complainant of the case, in the F.I.R., has only shown a suspicion against the appellant and two acquitted co-accused of the appellant, namely, Muhammad Ramzan and Liaqat Ali. Evidence of last seen was furnished by P.W.7. Muhammad Sarwar and P.W.B. Naseem Akhtar which is to the effect that they had seen Waleed (deceased) in the company of the appellant and his two acquitted co-accused, namely, Muhammad Ramzan and Liaqat Ali during the night of 30-9-2004. According to them, they informed the complainant (P.W.4.) about this fact on the next morning i.e. 1-10-2004, whereas, F.I.R.
In this case, was admittedly registered on 15-10-2004 i.e. After fifteen days of the missing of the child of the complainant and after fourteen days of the receipt of the information that his Child (Waleed) was seen in the company of the appellant and his two above mentioned acquitted co- accused. Muhammad Javed Naseem (P.W.4./complainant), who is real father of the deceased, kept mum despite the fact that both these witnesses had informed him about the said important fact. Both of them have admitted in their examinations-in chiefs that their statements to the said effect were recorded by the police after 15 days of the missing of the child. Had they seen the missing child of the complainant in the company of the appellant and two acquitted co-accused of the appellant, namely, Muhammad. Ramzan and Liaqat Ali, and" had they passed on this important and material information to P.W.4. Muhammad Javed Naseem (complainant), who was real father of the missing child, then complainant's natural re-action would have been to rush to the police station along with P.W.7. Muhammad Sarwar and P.W.B. Naseem Akhtar but he did not do so which reflects adversely on the credibility of his statement and statements of P.W.7. Muhammad Sarwar and P.W.B. Muhammad Akhtar. We have noted that neither P.W.4. Muhammad Javed Naseem (complainant) nor P.W.7. Muhammad Sarwar or P.W.B. Naseem Akhtar have offered any plausible explanation for reporting the matter to the police with such an inordinate delay of 15 days.
13. Apart from above, P.W.4. Muhammad Javed Naseem (complainant), during the course of hearing of bail petition by the learned Additional Sessions Judge, submitted an affidavit to the effect that Liaqat and Ramzan (co-accused of the appellant, since acquitted) are innocent and that he had no objection either to the grant of bail or to the acquittal of two acquitted co-accused of the appellant, namely, Muhammad Ramzan and Liaqat Ali from the case in hand which factum, in our view, in the given circumstances, also goes in favour of the appellant. The relevant portion of his cross-examination reads as under:-- "It is correct that bail petition, of accused Liaqat Ali and Ramzan was decided by the learned Addl.
Sessions Judge Mr.Khizer Hayat Sial. During the pendency of bail petition I submitted affidavit wherein I mentioned that accused Liaqat and Ramzan are innocent and have got no concern with the murder of my son Waleed deceased and that I had got no objection if their bail was confirmed or they were acquitted from the charge. It is also mentioned in his affidavit that I have sworn that affidavit with my free consent. Then I also got recorded my this statement mentioned in my affidavit before the learned Addl. Sessions Judge, Okara."
The next piece of evidence is the recovery of bones. In this respect, the important witness, is P.W.S. Muhammad Siddique. In the given situation, it has become imperative to quote the examination- in-chief of the said P.W. Which reads as under:--
14. "On 12-10-2004 I sawa dead body of child aged about 5/6 years which was naked in Rajbah 7- R/2-R. The water was very little in the Rajbah due to closeness of the water by the Irrigation Department and I found that dead body in Killa No.10 and Square No.123 from where the -Rajbah passes away. I saw a mark of injury on the right foot of the child which was an old and healed up injury and the same was a stitched wound. I made a telephone to Police Station Harappa regarding the dead body of child but the police did not come there. The animals were going to eat the dead body of child, therefore, I buried the same in Killa No.10. At night the dogs again went at the place of the burial of the dead body of a child and they took out the dead body and they started to eat the same dead body, on the following morning when I reached at the place of burial of the dead body I saw the bones of the deceased and I again buried the same in the aforesaid burial. Place. I got published a news in daily Jang Newspaper regarding the above said incident and the news was published in Daily Jang which is Mark 'A'. On 15-10-2004 police of Police Station Cantt., Okara and the heirs of the deceased reached at our village and met me. I told all above said facts to them and then I proceeded to the burial place of the dead body and I pointed out the same, then the dead body of a child was taken into possession by- the I.O. And the heirs of the deceased identified the dead body ,from the mark of identification. I got recorded my statement Exh.PE before the I.O. And the same was read over to me and I made my signatures as a matter of its correctness.", Thereafter, an Inquest Report (Exh.PH) was prepared and we have gone through the same but there is no mention of these bones in any of the column nor there is any recovery memo regarding these bones. Exh.PJ is a report which was issued by the Department of Anatomy, King Edward Medical College, Lahore, which shows that the bones were sent to the King Edward Medical College through the MS DHQ Hospital, Okara but there is no evidence on the. Record to show that those bones were sent by the said Medical Superintendent to the King Edward Medical College, Lahore, for expert opinion. Now the question arises whether the said report (Exh.PJ) is admissible in evidence. Under section 510, Cr.P.C., there are certain documents or reports which may be used in evidence without calling in an inquiry or trial the person (who prepared the same) as a witness. Ft reads as under:-- "510. Report of Chemical Examiner, Serologist.---Any document purporting to be a report, under the hand of any Chemical Examiner or Assistant Chemical Examiner to Government or of the Chief Chemist of Pakistan Security- Printing Corporation, Limited or any Serologist, finger print expert or fire-arm expert appointed by Government upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may without calling him as a witness, be used as evidence in any inquiry, trial or other proceeding under this Code:-- Provided that the Court may if it considers necessary in the interest of justice summon and examine the person by whom such report has been made."
Certainly, Exh.PJ does not fall within the category of documents/reports which can be used in evidence without calling its author as a witness. Surprisingly, in the Inquest Report it is mentioned that the bones were taken by the grand-father of the deceased for the purpose of burial on 15-10- 2004 and-if this is the position then the question arises as to which bones were sent to the King Edward Medical College for analysis. Moreso, there is no convincing evidence on the record to show that it were bones of complainant's missing child Waleed because no expert in this respect has been produced by the prosecution. Even in the report Exh.PJ the doctor has not stated anything regarding age of the bones. It has been admitted by P.W.5 that the bones were taken into possession by the police on 15-10-2004, therefore, it appears that after the discovery of sonic bones the case in hand was got registered whereafter prosecution made attempts to create evidence, therefore, no reliance can be placed on this piece of evidence which, even otherwise, is only supportive in nature.
16. So far as recovery of last worn clothes of the missing child Waleed is .Concerned, we have noted that there is no mention of any clothes in the F.I.R. Which was registered after fifteen days of missing the child, as such, mere recovery of clothes of the child, which was taken into possession through memo. Exh.PD, cannot be used to connect the appellant with the alleged commission of the offence.
17. While coming to the next piece of evidence i.e. The place of pointation from where the deceased was allegedly thrown into the canal by the appellant and his two acquitted co-accused, namely, Muhammad Ramzan and Liaqat Ali, in our view it has no value because it is not the case of the prosecution that any body had seen the appellant while throwing the dead body of Waleed into the canal.
18. The prosecution produced P.W.9 Muhammad Ishaq and P.W.10 Iftikhar Ahmad and tried to make them witnesses of extra-judicial confession. P.W.9, in his examination-in-chief, stated as under:-- "On 22-10-2004 I was present at my home then I was summoned by Allah Ditta who told me that he wants to convene a punchayat, then on 23-10-2004 a punchayat was convened at the house of Ch. Muhammad Sharif P.W. The father of the complainant, whereupon they in the presence of other co-villagers confessed their guilt and asked for pardon and requested to penalize one person and relieve the others. The same request was not accepted by the complainant party."
Examination-in-chief of P.W.10 reads as under:-- "On 22-10-2004 Allah. Ditta went to my village Chak No.57/5-L and told me that the child has been murdered by them and a punchayat in this connection is to be convened on 23-10-2004, he asked me to come to that punchayat for asking pardon from Ch. Muhammad Sharif, on 23-10-2004 at 4- 00 P.M. a punchayat was convened in the abadi of Ahmadnagar, other persons of Abadi were also present there, Allah Ditta and Ramzan were also present there and Liaqat was also present there.
All the three aforesaid, persons confessed before me that they had committed, the murder, they further stated that they were ready to give a person in lieu of a person and for two others they promised to pay Qisas amounting to Rs.4,00,000, Rs.4,50,000 and the complainant party did not forgive the accused then the punchayat was disbursed. Then I got recorded my statement on 5-11- 2004, which was not correctly recorded."
But we have noted that even in their examination-in-chief they have not named the appellant in any context, therefore, statements of both these witnesses cannot be taken into consideration for the purpose of maintaining conviction of the appellant.
The motive mentioned by the complainant (P.W.4.) in the F.I.R. Is that during the year 1988-89, there was a quarrel between the complainant and Ramzan acquitted co-accused of the appellant on account of passing from the street. But while appearing before the Court he has improved. The motive in the following manner:-- "The motive for the murder of my son Waleed was that the accused present in Court have a quarrel with me on a dispute of street and, therefore, he has grudge against me and Ramzan accused present in Court also involved in Jadu and Tonna and Taveez Dhaga, so, the accused had murdered my child."
19. In this scenario we are constrained to observe that the circumstantial evidence furnished by the prosecution to prove its case against the appellant is not of the standard as prescribed by the learned Apex Court of the country in the judgments, reference of which has been given above. It is a case which, in our view, is full of doubts. It is settled by the Apex Court of the country that in case of doubt, its benefit must go to the accused not as a matter of grace but of right. The same proposition came up for consideration in the case reported as Muhammad Akram v. The State (2009 SCM R 230), wherein, at page 236, the Hon'ble Supreme Court of Pakistan,' held as under: -- "13. The nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State (1995 SCM R 1345) that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right".
(emphasis supplied)
In Ayub Masih v. The State (PLD 2002 Supreme Court 1048), at page 1056, while quoting a saying of the Holy Prophet. (P.B.U.H.) that "mistake of Qazi (Judge) in releasing a criminal. Is better than his mistake in punishing an innocent", and making .Reference to the maxim, that "it is better that ten guilty persons be acquitted rather than one innocent person be convicted", the learned Apex Court has been pleased to observe as under:-- ".............. It is hardly necessary to reiterate that the prosecution is obliged to prove its case against the accused beyond any reasonable doubt and if it fails to. Do so the accused is entitled to the benefit of doubt as of right. It is also firmly settled that if there is an element of doubt as to the guilt of the accused the benefit of that doubt must be extended to him. The doubt of course must be reasonable and not imaginary or artificial. The rule of benefit of doubt, which is described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim, 'it is better that ten guilty persons be acquitted rather than one innocent person be convicted'. In simple. Words it means that utmost care should be taken by the Court in convicting, an accused. It was held in. The State v. Mushtaq Ahmad (PLD)
1973 SC 418) that this rule is antithesis of haphazard approach or reaching a fitful decision in a case. It will not be out of place to mention here -that this rule occupies a pivotal place in the Islamic Law and is enforced rigorously in view of the saying of the Holy Prophet (P.B.U.H.) that the mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent".
(emphasis supplied)
20. After considering all the circumstances, this Court is of the considered view that the prosecution has failed to prove its case against the appellant beyond any shadow of doubt, therefore, this appeal is allowed, the impugned judgment is set-aside and the appellant is acquitted from the charge. As the appellant is behind the bars, so, he shall be released forthwith if not required to be detained in any other case.
Murder Reference is answered in the Negative and sentence of death is Not Confirmed.