1. Iftikhar Hussain Butt, J.--Through the above captioned appeal, the judgment of Additional District Criminal Court Dudyal dated 29.4.2009 has been called in question, whereby the appellant was convicted and sentenced to 25 years R.I under Section 302(C), APC, 20 years R.I under Section 12 of The Offence of `Zina' (Enforcement of Hudood) Act, 1985 (hereinafter to be referred as ZHA) and 7 years R.I alongwith fine of Rs.20,000/- under Section 377, APC.
2. The necessary facts forming the background of instant appeal are that Muhammad Sadiq, complainant, lodged a written F.I.R. at Police Station Dudyal on 27.5.2007 at 11:45 a.m. alleging therein that on 26.5.2007 at 10:00 a.m. his son Muhammad Akmal aged six years disappeared from the house. He alongwith his family members started searching him. During the search, Muhammad Malik S/O Sherbaz and Muhammad Saleem S/O Sodagar told him that they saw Muhammad Akmal with Yasiran alias Zia going towards the stream. He went to the house of Yasiran to know his whereabouts but he was also missing from ' his house. On 27.5.2007 when the children of village went towards the stream while taking their cattle, Zaheer found the dead body of Muhammad Akmal lying in drain and informed him. Thereupon, he went at the spot and found the dead body of his son, Muhammad Akmal, socked in blood. Yasiran killed his son and has thrown his dead body in the drain. He further contended that the accused is a scoundrel and a hardened criminal.
3. The motive behind the occurrence has been stated that the complainant forbade the accused from doing nasty acts.
4. On this report a case under Section 302, APC was registered by Raja Iftikhar Ahmad SI/SHO (P.W.14).
5. On 27.5.2007 Abdul Qayyum SI/SHO (P.W.16) went at the spot, prepared an inquest report Exh.PS and injury form of the deceased Exh.PP. On the same day, he took into possession a black pair of plastic Chappels of the deceased from the place of occurrence vide recovery memo. Exh.PE and blood-stained clay vide recovery memo. Exh.PF in presence of Muhammad Rafique (P.W.6) and Mahboob Hussain (P.W.7).
6. The post-mortem of the deceased was performed on 27.5.2007 by Dr. Mushtaq Ahmad Chaudhry (P.W.13) vide its report Exh.PQ, who found the-following injuries:--
1. 5"x4" open wound on scalp (lacerated) on (R) side with brain matter coming out of cranial cavity.
2. 1"x1" lacerated wound on occipital region of skull.
3. Lacerated wound 2"x2cm on (L) thigh.
4. Laceration on (R) side of ant. Chest 2"x2".
5. Bruises on back.
6. Prolapse of rectum and discolouration of mucous with swelling. For this rectal swab was taken whose microscopic examination shows sperms seen under microscope.
7. Opinion:
1. Death of this young boy occurred due to the sever head injury thus causing extensive brain damage and ultimately death (homicidal) .
2. Unnatural sexual offence has been performed with this young boy.
8. After the post-mortem, on 27.5.2007 Dr. Mushtaq Ahmad Chaudhary handed over the blood- stained clothing of the deceased to Kh. Abdul Qayyum SHO which' were taken into possession vide recovery memo. Exh. PG. On the same day, he also took into possession a blood-stained stone .weighing 0/18 kilograms at the instance of accused Yasiran alias Zia vide recovery memo. Exh.PH.
9. Muhammad Khalid (P.W.8) and Matloob Hussain (P.W.9) testified both the abovementioned recovery memos.
10. According to the laboratory report, on 28.5.2007, dead sperms of semen were found during the rectal swa b for semen analysis of the deceased.
11. On 4.6.2007, Kh. Abdul Qayyum (P.W.16) obtained a certificate Exh.PT from Dr. Mushtaq Ahmad (P.W.13) whereby it was certified that stone, the weapon of offence, could be the cause of death of the deceased.
12. On 5.6.2007 he got medically examined Yasiran accused vide certificate Exh.PU, whereby it was certified that the accused is able to perform sexual act.
13. Said Kh. Abdul Qayyum got prepared site-plan Exh.PK alongwith its keynotes Exh.PL and the copies of revenue record Exh.PM and Exh.PN from Abdul Hameed Patwari (P.W.10) on 6.6.2007.
14. According to Chemical Examination report Exh.PDD, the clay and cloths of the deceased were found stained with blood.
15. After completion of the investigation, the appellant was sent to face trial before Additional District Criminal Court Dudyal in offences under Sections 302 & 377, APC read with Section 12, ZHA. The charge was framed on 17.7.2007 but the appellant did not plead guilty and claimed the trial.
16. In support of its case, the prosecution produced Muhammad Sadiq (P.W.1), Muhammad Malik (P.W.2), Muhammad Saleem (P.W.3), Abdul Kareem (P.W.4), Muhammad Zaheer (P.W.5), Muhammad Rafique (P.W.6), Mahboob Hussain (P.W.7), Muhammad Khalid (P.W.8), Matloob Hussain (P.W.9), Abdul Hameed Patwari (P.W.10), Shahid Iqbal Head Constable Police (P.W. 11), Murad Ali Constable Police (P.W.12), Dr. Mushtaq Ahmad Chaudhary Civil Medical Officer (P.W.13), Raja Iftikhar Ahmad SI Police (P.W.14), Raja Nasrullah Khan DSP (P.W.15) and Kh. Abdul Qayyum SI/SHO (P.W.16).
17. After completion of the prosecution evidence, the salient features of the prosecution evidence and incriminating material appearing against the appellant were put to him for his explanation but he refuted the allegation and again claimed to be innocent. No evidence was produced in defence.
18. The purgation of the prosecution witnesses was also done by the trial Court.
19. The trial Court, after hearing arguments of the learned counsel for the parties, awarded aforementioned sentences to the appellant vide its judgment dated 29.4.2009. It is the aforesaid judgment which has been assailed through the instant appeal.
20. Many opportunities were granted to the appellant to engage his counsel but he has chosen to argue the appeal hirhself. The convict-appellant submitted that he cannot speak but he seeks mercy of the Court. He further contended that he has been implicated in the case on account of some doubt. He also argued that he knows Malik and Saleem (P.Ws). When the Court inquired from him as to whether the prosecution witnesses nurse any grudge or rancor against him, the appellant kept mum and did not answer.
21. On the contrary, Ali Zaman Raja, the learned Counsel appearing on behalf of the complainant, submitted that the prosecution has proved its case beyond any shadow of reasonable doubt. The learned Counsel further contended that Muhammad Malik and Muhammad Saleem (P.Ws) saw the deceased in the company of accused on the fateful day while going towards the stream and they told the aforesaid fact to Muhammad Sadiq, complainant, and when the complainant went to the house of accused, he was not present at home. The learned Counsel pointed out that Muhammad Saleem is an impartial witness, who belongs to Shaikh tribe and Abdul Kareem, who belongs to Butt tribe, deposed that they saw the accused rushing towards Jungle wherefrom dead body of the deceased was recovered and they told the aforesaid fact to the complainant. The learned Counsel further contended that Zaheer P.W testified that he found the dead body of the deceased from drain near the tree of Palahi when he went to graze his goats and after that he informed the complainant at about 9:45 a.m. The learned Counsel pointed out that Muhammad Rafique, Mahboob Hussain and Matloob Hussain (P.Ws) have fully supported the factum of recoveries of Chappel of the deceased, blood-stained earth, clothes and stone, the weapon of offence. According to the learned Counsel, medical evidence fully supports the prosecution story.
22. The learned Counsel finally submitted that the appellant is hardened criminal, who abducted the deceased for unnatural lust and after committing sodomy killed him; therefore, he is not entitled to any concession.
23. Mirza Aziz-ur-Rehman, the learned Asst.A.G appearing on behalf of the State, fully owned and supported the arguments raised by the learned Counsel for the complainant.
24. We have given our due consideration to the arguments addressed at Bar and examined the record carefully. In the instant case, no eye-witness is available and the whole case rests upon circumstantial evidence.
25. Muhammad Sadiq, complainant, (P.W.1) lodged an F:I.R when he was told by Muhammad Malik and Muhammad Saleem (P.Ws) that they saw his son Muhammad Akmal, deceased, in the company of accused going towards stream (Kassi), thereupon, he went to the. house of accused to know his whereabouts but he was not present at home. On the next day, at the pointation of Zaheer P.W, he went at the spot and found dead body of his son soaked in blood lying in a drain of jungle. He forthwith lodged a written F.I.R and named the accused therein.
26. The aforesaid fact finds support from the testimony of Muhammad Malik (P.W.2) and Muhammad Saleem (P.W.3), who have deposed in unequivocal manner that at 9:45 a.m. they saw deceased in the company of accused and in the afternoon they came to know that deceased was missing.
27. They also started searching the deceased but in vain. On 27.5.2007, the dead body of deceased was recovered from a Pubbi. Although Muhammad Malik is related to the complainant but it has not been proved on the record that he was animus to the accused. Thus, the factum of last seen stands fully proved by both abovementioned witnesses.
28. Abdul Kareem (P.W.4) stated that on 26.5.2007 at noontime he went to northern side of his house to find his cattle. Thereon, he saw the accused rushing from Ratta Nala towards Dangle wherefrom the dead body was recovered. He further stated that when on 26.5.2007 at 10:00 a.m. the dead body was recovered from Pubbi, he told Muhammad Sadiq, complainant that he had seen the accused while rushing towards Dangle wherefrom the dead body of the deceased was recovered.
29. According to him, the accused is scoundrel and a wild beast.
30. Zaheer (P.W.5) deposed that on 27.5.2007, he went to graze his cattle towards Pubbi when he found dead body of Akmal, whom he knew very well, lying in a drain near the tree of Palahi and at about 9:45 a.m. he informed the complainant.
31. Muhammad Rafique Bhatti (P.W.6) and Mahboob Hussain Janjua (P.W.7) deposed about the recoveries of blood-stained clay and a pair of black Chappel of the deceased taken into possession from the place wherefrom the dead body was recovered. Above mentioned articles were sent to the Chemical Examiner for report, which was received as positive.
32. Muhammad Khalid (P.W.8) and Matloob Hussain Janjua (P.W.9) testified the recoveries of blood- stained clothes of the deceased and a stone weighing 16/18 kilograms, the weapon of offence, but in spite of lengthy cross-examination, the defence failed to create any dent in their deposition rather both the witnesses fully corroborated the factum of recoveries. They also deposed that at the time of recovery of stone, the weapon of offence, accused also confessed in their presence that before killing the deceased he committed sodomy with him.
33. Abdul Hameed Patwari (P.W.10) deposed about the preparation of site-plan, its keynotes and copies of revenue record. He stated that he prepared the site-plan on the pointation of complainant and P.Ws.
34. Shahid Iqbal Head Constable Police (P.W. 11) stated about the safe possession of recovered articles and also deposed that those were handed over to Murad Ali constable Police for obtaining chemical examination.
35. Murad Ali Constable Police (P.W.12) stated that he took away recovered articles and handed over to the Chemical examiner.
36. Dr. Mushtaq Ahmad, Civil Medical Officer, (P.W.13) testified the post-mortem report of the deceased and also stated that he attested the laboratory report, whereby it was found that before commission of murder. the accused also committed sodomy with the deceased. lftikhar Ahmad SI Police (P.W.14) supported the factum of registration of the case on basis of F.I.R lodged by the complainant.
37. Raja Nasrullah Khan, DSP (P.W.15) deposed that he examined the investigation file and being satisfied directed SHO to present challan against the accused before the trial Court.
38. Kh. Abdul Qayyum SI Police I.O. (P.W.16) deposed the details of investigation and his conclusion that according to the investigation, it was proved that the accused firstly committed sodomy with the deceased and thereafter killed him with a stone.
39. A close scrutiny of prosecution evidence mentioned above reveals that it is not only sufficient for conviction but also well authenticated. It is also incompatible with the innocence of the accused.
40. The cumulative effect of all pieces of circumstantial evidence is that all links of the chain are clear and strong together to establish the guilt of accused without any shadow of reasonable doubt.
41. It may be mentioned here that not only the evidence of last seen is trustworthy but also the recovery of blood-stained stone, the weapon of offence recovered on the pointation of accused coupled with his extra judicial confession that before killing the deceased he also committed sodomy with him, is sufficient to implicate him with the commission of offence. The post-mortem report and laboratory report further strengthen the case of prosecution. The recovery of blood- stained clay and clothes of the deceased are also sufficient evidence to link the accused with the alleged commission of murder. Therefore, all the circumstances from which the conclusion of guilt has to be drawn are fully established and also consistent with the hypothesis of guilt of the accused. The prosecution evidence is sufficient, trustworthy and convincing to reach an irresistible conclusion that the accused is the culprit beyond any reasonable doubt.
42. It will not be out of place to mention here that despite the best efforts of this Court, the accused did not furnish any explanation about his involvement in the offence and he also did not examine himself on oath under Section 340(2) Cr.P.0 at the trial rather he left himself at the mercy of the Court, which further established his involvement in the case. (2003 SCJ 507). - The prosecution witnesses are impartial and independent, and do not have any semblance of enmity against the accused. The impugned judgment has been passed after due appreciation of facts and law and no illegality has been noticed. The act of the accused is very brutal and highly repugnant to morals, who committed sodomy with a minor boy aged six years and thereafter killed him with a stone, does not deserve any concession. Therefore, in order to secure real justice the impugned judgment has to be maintained.
43. The upshot of above discussion is that finding no force in this appeal, it is hereby dismissed.