AGHA RAFIQ AHMED KHAN, C.J.---This appeal has been preferred by appellant Muhammad Bilal through Jail Superintendent against judgment dated 21-12-2004 delivered by learned Additional Sessions Judge, Kot Addu, District Muzaffargarh whereby he was convicted and sentenced as under:-- ' Under section 302(b), P.P.C. Death sentence and to pay a sum of Rs, 100,000 as compensation to be paid to the legal heirs of the deceased or suffer six months' simple imprisonment.
(i) Under section 377 of P.P.C. 10 years' rigorous imprisonment with a fine of Rs, 10,000 and in default whereof to further suffer three months' simple imprisonment.
2. Benefit of section 382-B of the Code of Criminal Procedure was granted to the appellant to the extent of section 377 of Pakistan Penal Code.
3. Brief facts of the case as given out in the oral crime information laid before Yousaf Ali Inspector S.H.O. P.W.10 by Khadim Hussain complainant/P.W.1 are that he was a shopkeeper by profession.
There was a mango garden in Chah Budhey Wala village Kotla owned by Mian Ghazanfar Ali who sold its fruit to Bilawal Khan Gurmani. Accused Muhammad Bilal was employed as Chowkidar by Bilawal Khan Gurmani. The complainant further stated that he had purchased "Bhoosa" from the said landlord Ghazanfar Ali. That on 23-5-2004 he along with Ghulam Akbar, Bashir Ahmed P. Ws and his "Bhanja" Muhammad Javed Iqbal (deceased) aged 12 years went to the garden on a bull cart to collect Bhoosa. The complainant along with Ghulam Akbar and Bashir Ahmed, P.Ws. moved after loading Bhoosa when Muhammad Bilal accused appeared at the scene. The complainant left his Bhanja under the shade of tree due to hot weather. At Asar Wela the complainant along with the P.Ws. again went to the garden to collect Bhoosa but they neither found Muhammad Bilal nor Muhammad Javed Iqbal at the spot. The complainant and the P.Ws. went toward sugarcane field in search of the latter. They saw Muhammad Bilal accused emerging out of the sugarcane field who, having spotted them, took to his heels. The complainant along with the companions went in the sugarcane field and at some distance they saw Muhammad Javed Iqbal lying on the ground facing downward. His shalwar had been removed and string of his shalwar was tied around his neck and he was lying dead on the ground. The complainant further alleged that Muhammad Bilal accused caused his Qati-e-amd after committing sodomy with Muhammad Javed Iqbal. It was in this background that the oral complaint was registered with Police Station Kot Addu on 23-5-2004 at 6.10 p.m. The document is Exh.PA on record.
4. The investigation was conducted by Yousaf Ali, Inspector/SHO, P.W .10. He visited the place of occurrence, inspected the same and also inspected the dead body of deceased Javed Iqbal. He prepared injuries statement Exh.PD and inquest report Exh.PF and sent the dead body to the mortuary through P.W.7 Ghulam Qadir, Constable No,888. He prepared rough site plan Exh.PJ including all the drawing and marginal notes thereon. He also recorded statements of witnesses under section 161 of the Code of Criminal Procedure. After postmortem report the last worn clothes were produced before him by P.W.7 which were taken into possession vide memo Exh.PC. He also received postmortem report, one sealed envelope and also one sealed vial which was taken into possession vide the said memo. He arrested accused on 6-6-2004 who had been produced by Mian Ghazanfar Ali Qureshi at the police station. He got the accused medically examined on 7-6- 2004. During, interrogation the accused disclosed that he could point out the place where he committed sodomy and murder of Javed Iqbal deceased. After completion of all legal formalities the local police submitted a report under section 173 of the Code of Criminal Procedure in the court requiring the accused to face trial.
5. The learned trial court framed charge against the accused under section 12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, under sections 377 and 302(b) of Pakistan Penal Code on 23-8-2004. The accused did not plead guilty and claimed trial.
6. The prosecution in order to prove its case produced 10 P.Ws. at the trial. The gist of deposition of witnesses is as under:-
(i) Khadim Hussain, complainant appeared as P.W.1. He reiterated the facts recorded by police on his statement prior to the registration of F.I.R; (ii)Ghulam Akbar appeared as P.W.2 and corroborated statement of complainant Khadim Hussain P.W.1; (iii)Khadim Hussain son of Ali Muhammad deposed as P.W.3. He and Kaloo (given up P.W.) had identified dead body of Javed Iqbal at the time of postmortem. He also signed recovery memo through which the I.O. took into possession the various articles of the deceased; (iv)" Ghazanfar Ali P.W.4 stated that on 6-6-2004, while he was present at his dera, Muhammad Bilal accused confessed about the murder of Javed Iqbal. He further stated that he apprehended the accused and produced him before the SHO for further proceedings against the accused.
(v)Haji Khuda Bakhsh, as P.W.5 corroborated the statement of Ghazanfar Ali Qureshi. He stated that he was present at the dera of Ghazanfar Ali Qureshi when accused Bilal made confession regarding the murder of Javed Iqbal. He also accompanied P.W.4 to the police station; (vi)Muhammad Akbar, Head Constable No,221, P.W.6, stated that on 23-5-2004 the Investigating Officer handed over to him one parcel of shalwar, Kameez, Azarbad, sealed envelope and a sealed vial for keeping in safe custody in the Malkhana. On 31-5-2005 he handed over the said articles to Sajjad Hussain, Constable No, 160 P.W.11 for onward transmission to the Office of the Chemical Examiner;
(vii) Ghulam Qadir, Constable No,888 appeared as P.W.7 to state that on 23-5-2004 he escorted the dead body of Javed Iqbal to the hospital for postmortem and on the same day he handed over various articles belonging to deceased to the Investigating Officer;
(viii) Dr. Munir Aftab, Medical Officer had conducted postmortem of deceased on 23-5-2004. He appeared as P.W.8 to state about the steps taken by him regarding the postmortem. He also issued postmortem report; (ix)Tariq Munir Patwari appeared at the trial as P.W.9 to state that on call by the police he, on 12-6- 2004, visited the place of occurrence. He prepared scaled site plan Exh.PH and Exh.PH/1 on pointation of P.Ws. and handed over the same to the police; and
(x) Yousaf Ali, Retd. Inspector appeared as P.W.10. He gave the detail of investigation in the case conducted by him. The detail of which has already been mentioned earlier paragraph of this Judgment.
(xi)Sajjad Hussain 160/C-1 appeared at the trial as P.W.11 to state that on ,31-5-2005 he received parcels from Muharrar Muhammad Akbar for onward transmission to the office of Chemical Examiner. Both the parcels were deposited intact on the same day in the requisite office.
7. The learned trial Court after 'close of the prosecution evidence recorded statement of accused under section 342 of the Code of Criminal Procedure wherein he claimed innocence, denied the occurrence and deposed that P.Ws. are inter se related and he has been falsely implicated in the case. He opted to make statement on oath under section 340(2) of the Code of Criminal Procedure and produce evidence in his defence but on 9-12-2004 he stated that he will neither make a statement on oath nor produce evidence in his defence. The learned trial court after completing legal formalities of the trial found the accused guilty under sections 302(b) and 377 of Pakistan Penal Code. The convictions and sentences ensued as mentioned in the opening paragraph of this Judgment. Hence the present appeal.
8. We have examined the file. The evidence brought on record as well as the statement of the accused recorded under section 342 of the Code of Criminal Procedure has been perused. The relevant portions of the impugned judgment have been examined.
9. The arguments that prevailed upon the learned trial Court to return a verdict of guilt have been elaborated in paragraphs 23 through 28 of the impugned judgment which may be summarized as follows:--
(i) That the first information report was lodged promptly;
(ii) That the prosecution produced strong circumstantial evidence of last seen;.
(iii) That the evidence of the prosecution is supported by medical evidence;
(iv) Further corroboration is provided by the positive report of the Chemical Expert Exh.PG; The presence of P.W.1 Khadim Hussain and Ghulam Akbar at the spot immediately after the occurrence is established on record;
(vi) That P.W.1 and P.W.2 had seen Muhammad Bilal accused emerging out of the sugarcane field;
(vii) That the accused pointed out the place where lie committed sodomy and Qatl-e-amd of Muhammad Javed.lqbal;
(viii) Fard "Nishan Dehi Exh.PB was prepared by police and this fact has not been challenged in the cross-examination;
(ix) The prosecution produced strong evidence of extra judicial confession made before P.Ws.4 and 5;
(x) That the extra judicial confession made by the accused is corroborated from the last Seen evidence made by P.W.1 and P.W.2; and
(xi) Lastly, the post-mortem examination confirmed commission of sodomy and murder of Muhammad Javed Iqbal. The learned trial Court also found that the accused was a chowkidar of the garden where the crime was committed and that it was not possible for the complainant to jgnore the real culprit and to falsely implicate the accused in a murder case.
10. Learned counsel for the appellant raised the following points in the defence of appellant:--
(i) That there is no direct evidence in this case and the case depends entirely upon circumstantial evidence;
(ii) That the first information report does not contain details of the incident; (iii)That the F.I.R. does not clearly state as to whether the shalwar of the victim was removed fully or partly;
(iv) The F.I.R. does not mention that there was semen on the buttock of the victim. This fact has been stated in evidence and it amounts to dishonest improvement;
(v) That suggestions were put to the witnesses for the prosecution that it was a blind murder; (vi)That the accused in his statement under section 342 of the Code of Criminal Procedure had stated that the real culprit was Ghazanfar Ali the landlord of the area;
(vii) That the witnesses for prosecution are related inter se; and
(viii) Lastly the learned counsel relied upon the case of Ziaur-Rehman v. The State 2001 SCM R 1405 to put forward the proposition that evidence of extra judicial confession alone without any corroboration was not sufficient to maintain any conviction. Learned counsel also relied upon the case of Wazir Muhammad and another v. The State 2005 SCM R 277 wherein it is held that extra judicial confession around which the entire case revolved was made by the accused while being investigated by the police at the police station before a stock witness which was not worth of credence and the question of its corroboration was immaterial.
11. Learned Additional Prosecutor-General on the other hand urged that the convictions and sentences recorded by the learned trial Court should be maintained as they are based upon cogent reasons. It was urged that the appellant had committed gruesome acts of murder after committing unnatural offence. Learned counsel in support of his contentions raised the following points for our consideration:--
(i) That the prosecution has successfully shown that the accused was last seen with the deceased and the accused had not given any explanation about his movement before or immediately after the occurrence;
(ii) That the first information report was lodged promptly;
(iii) The F.I.R. is not required to be a detailed as exhaustive narration of the incident as urged by the learned counsel for the appellant;
(iv) The extra judicial confession is not only voluntary but is duly corroborated; and lastly
(v) That there was no earthly reason on the part of complainant to falsely implicate the appellant and the appellant has not estatlished any grudge or enmity on the part of complainant group.
12. We have considered the case from various aspects. Our observations in this matter are as follows:--
(i) We are conscious of the fact that no direct evidence either of commission of unnatural offence or of strangle lation of minor Muhammad Javed Iqbal is available on record. In fact the prosecution has not alleged having seen any one or both the offences. The prosecution case rests upon the following factors:-
(a) Thee place of occurrence is a garden and the appellant was employed there as a Chowkidar.
Complainant had visited the garden to collect Bhoosa along with P.W.2 and his nephew Muhammad Javed Iqbal deceased. The presence of all at the given time is established on record;
(b) Deceased and accused were last seen by complainant P.W.1, Khadim Hussain, complainant P.W.2 Ghulam Akbar and Bashir together in the garden at about 2-00 p.m. on the fateful day;
(c) The complainant returned for the second load of Bhoosa after about an hour and did not find the deceased under the tree where they had left him. The appellant was also not seen there;
(d) They looked around and proceeded towards the nearby sugarcane field. They called out minor Muhammad Javed Iqbal but no one responded. However the appellant, on hearing the call, stood up and rushed towards East Southern side;
(e) This manner of escape of the appellant after he got up from under a mango tree, made the complainant party suspicious. They rushed towards the spot only to find half naked strangulated dead body of minor Muhammad Javed Iqbal.
(t) Police station was at a distance of 5 k.m. from the place of occurrence. The complainant reached the police station and laid the crime information. Appellant was nominated. The F.I.R. was registered at 6-10 p.m.
(ii)We are also aware that in cases depending upon circumstantial evidence the court has to be very cautions because a reasonable inference of guilt has to be determined on the basis of indirect evidence. Conviction in such circumstances can be based if the facts and circumstances from which the conclusion of guilt has to be inferred must be established on record. The circumstantial evidence visualizes a chain of events. All the links of the chain must be connected and should lead towards the accused.
(iii)In the instant case a strong chain of events is not only established but there is direct evidence of P.W.1 and P.W.2 to the effect that during the search of deceased his name was called. This noise alerted the appellant who stood up and made good his escape. Within minutes of his flight the search party found the corpse of minor from where the appellant detected. The accused did neither explain as to where he went from the place where deceased was sitting with him under the tree nor gave any reason why he took to his heels from the place where the corpse of victim was lying.
(iv)The period between the death of the minor and his being last seen with the appellant is very short. The appellant is a Chowkidar of that area. His presence at the place of occurrence is not only normal but has been established by oral evidence. The trend of cross-examination confirms that the appellant was employed as a Chowkiddar.
(v) The medical evidence by way of post mortem report Exh.PE establishes not only commission of unnatural offence but also murder due to "chest and abdominal pressure along with ligature," both resulting in cardiac respiratory failure and instantaneous death. The positive report Exh.PG of the Chemical Examiner further corroborates the medical evidence;
(vi) The extra judicial confession of the appellant made before Ghazanfar AU P.W.4 and Haji Khuda Bux P.W.5 rings true because both of them immediately nabbed him and produced before the police. P.W.4 had leased out his garden to one Bilawal Khan who had employed the appellant as a guard in the garden. P.W.4, being the owner of garden where the appellant was employed and also being an influential landlord was the correct person to be taken into confidence by the appellant;
(vii) The pointation of place of occurrence is also a factor which supports the direct evidence of last seen and running away of the appellant from the place of occurrence;
(viii) The circumstantial and direct evidence noted above leads to the hypothesis of the guilt of appellant and nothing else. The entire evidence on record has to be seen. Under the circumstances the prosecution has brought on record the best possible evidence. Nothing material has been suppressed by the complainant side. There is no motive to involve the appellant falsely in a murder case. An aggrieved person may forgive a killer and in that event he may not pursue the case but that does not mean that he would perforce implicate an innocent person. The chain of circumstantial evidence produced by prosecution evidence leads to the hypothesis of guilt of appellant. Corroboration is available on record. In such cases indirect as well as direct evidence put together prove the guilt in a satisfactory, manner. Judicial mind has to be morally convinced of the hypothesis of guilt. Law does not prohibit maintaining conviction and sentence of death when circumstantial evidence establish culpability of accused; (ix)The reasons relied upon by learned trial court in recording convictions of the appellant are base upon evidence legally proved on record. It cannot be said that the inference of guilt was not borne out by the evidence. There is no technical defect in the trial either;
(x) The two reports relied upon by learned counsel for the appellant do not advance the case of defence. In the case of Zia-ur-Rahman, supra, the Hon'ble Supreme Court held that extra judicial confession alone, without any corroboration, was not sufficient to maintain conviction which is not the position in this case. In this appeal there are other factors which corroborate the fact of extra judicial confession. In the second case of Wazir Muhammad relied upon by learned counsel for the appellant, the extra judicial confession was made by accused during investigation by police at the police station in the presence of a stock witness. That position is also not available in the present appeal; (xi)It may be seen that according to Article 21 of Qanun-e-Shahadat Order, 1984, the conduct of an accused person is a relevant fact. The failure of accused to furnish plausible explanation that on which point, time and place where the deceased got separated from him has to be considered judicially because the accused could not be said to have discharged the onus which lay upon him in view of the provisions 'of Article 21 ibid. Similarly the fact that the accused ran away from the place of occurrence on hearing the voice of the complainant party amounted to intentional avoidance. Running away from the scene of occurrence can be considered a pointer to the guilt of accused. However the value of such conduct depends upon facts and circumstances of each case. It may also be noted that the prosecution produced P.W.4 to prove extra judicial confession who admitted the presence of an other person at the time of extra judicial confession. The other person was also produced by the prosecution as P.W.S.
13. This confession made before P.W.4 and P.W.5 was not made while the appellant was in custody.
Independent corroboration is the rule of prudence for the safe administration of criminal justice. As stated earlier the extra judicial confession has been duly corroborated. The proximity of time between the last seen together and the time of death and escape of appellant from the place of occurrence coupled with his voluntary confession made before P.W.4 and P.W.5, his total silence about his presence at the spot, and the cause of death of Muhammad Javed Iqbal and the commission of unnatural offence with the deceased are unrebutted facts. The presence of accused at the place of occurrence along with the deceased is fully established. All these factors put together are clear pointers towards the culpability of appellant.
14.In view of what has been stated above we are not persuaded to interfere in the convictions recorded by the trial court. The appellant, a strong young man of 25 years, played havoc with a minor of 10/12 years, He deserves neither sympathy nor leniency.
15.Resultantly Jail Criminal Appeal No, 73/I of 2010 filed by appellant Muhammad Bilal against the impugned judgment dated 21-12-2004 delivered by learned Additional Session Judge, Kot Addu in Sessions Case No, 9-7 of 2004 Sessions Trial No, 2-7 of 2004 is dismissed. Convictions and sentences are maintained with the consequence that Criminal Murder Reference No, 6/I of 2010 is answered in the affirmative.