Sh. Najam-ul-Hasan, J.--Muhammad Rafique, appellant was tried by a learned Addl. Sessions Judge, Dera Gazi Khan in case F.I.R. No, 63/2001 registered under Sections 302/377, P.P.C. at Police Station, Kala, District Dera Gazi Khan. Vide judgment dated 23.4.2003 the learned trial Court convicted the appellant under Section 302(b), P.P.C. and sentenced him to suffer life imprisonment and also directed him to pay Rs,1,00,000/- as compensation to legal heirs of the deceased under Section 544-A, Cr.P.C. or in default thereof to further suffer one year S.I. He was also convicted under Section 377, P.P.C., and sentenced to suffer seven years R.I. with fine of Rs, 10,000/- and in default thereof to further undergo three months S.I. Benefit of Section 382-B, Cr.P.C. was, however, extended to him.
2. Feeling aggrieved of above conviction and sentences the appellant has filed Cr1. Appeal No, 355 of 2003. The complainant has also filed Cr1. Revision No, 182 of 2003 for enhancement of sentence of appellant from life imprisonment to death. This revision petition came up for hearing before a learned Single Bench of this Court and notice was issued to accused and as such these matters have been placed before this Division Bench. Both these matters are being decided together through this single judgment.
3. Prosecution story as narrated in the F.I.R. (Ex.P.O.) is that on 11.7.2000 at about 11:00 a.m. the complainant went to his well (Chah) in connection with some domestic affairs and at that time his son, namely, Zargham Abbas aged about 6/7 years was playing near the house. At about 5/6:00 p.m. when the complainant came back he found his son missing, upon which he along with other relatives started searching for Zargham Abbas but in vain. On 12.7.2000 during search, Khuda Bukhsh and Ghulam Ali P.Ws informed him that dead body of his son, namely, Zargham Abbas was seen in D.G. Canal near Railay Wala stuck in, syphen. They reached near Railay Wala Syphen and recovered the dead body from Canal. Later on, the dead body was buried. It so happened that the complainant came to know that Zargham Abbas had been strangulated and thereafter his dead body was thrown in the Canal. Upon this information, the complainant moved application to the Judicial Magistrate on 24.8.2000 for exhumation of the dead body with the plea that his son had been strangulated. On the orders of the learned Judicial Magistiate exhumation of the grave was conducted and autopsy was performed. The post-mortem examiner sent the viscera s of dead body for analysis. On receipt of report, it came to light that Zargham Abbas was subjected to sodomy and thereafter his neck was pressed. The complainant raised suspicion against Rafique, appellant alleging that he with the help of Abbas had committed sodomy and then pressed his neck and had thrown the dead body in the canal.
Motive behind the occurrence stated by the complainant was that Rafique, appellant was a whoremonger and even before the present occurrence he had been challaned in zina cases and the present complainant had been supporting complainant of that zina case against Rafique accused and accused threatened him of dire consequences.
4. Zahoor Ahmad, Sub-Inspector (P.W.13) conducted investigation of this case, On. 12.4.2001 he was on patrolling duty in his beat when Ghulam Abbas complainant presented written application (Ex.PJ) to him and same was sent to police station for registration of formal F.I.R. He visited the spot and prepared rough site-plan of place of occurrence. He proceeded to the place where dead body was found stuck in the Canal. He also prepared site-plan (Ex.PL) of said place. He also recorded statements of PWs. On 19.4.2001 he arrested the accused from the premises of the Court and got him medically examined on 19.4.2001.
5. Dr. Fayyaz Karim Leghari (P.W.7) conducted post-mortem examination of the exhumed dead- body of Zargham Abbas on 11.9.2000. The dead body was exhumed from the grave which had been identified by Ghulam Abbas, complainant and Ghulam Hussain. The dead body was in advanced stage of putrefaction. The dead body was of child of about stated age (Milky teeth found). Soft tissues were gone, hard skin was present on some parts of the body. External injuries could not be commented due to advanced stage of purification. Muscles were putrefied, viscrae was purified.
No injury was present on the Skelton. Scalp hair was present. In the column of death the date of knowledge of death as per police papers was 12.7.2000.
6. On 19.4.2001 on the application (Ex.PA) submitted by the police, Dr. Khalil-ur-Rehman Khan Lond, S.M.O. (P.W.1) medically examined Muhammad Rafique appellant with regard to his potency and vide his report (Ex.PA/1) the doctor declared that the appellant was capable of commiting sexual act.
7. After completion of investigation the appellant was found involved in the crime and was challaned to Court to face trial.
8. At the commencement of trial, charge was framed against the appellant to which he pleaded not guilty and claimed trial. In order to prove the charge the prosecution produced as many as 13 witnesses and closed its case.
9. The trial Court examined the appellant under Section 342, Cr.P.C. The appellant while answering the question "why this case against you and why the P.Ws. have deposed against you?" replied as under: "In fact Nazar Hussain son of Barkhurdar is uncle of Munir Ahmad Inspector Police. His wife is niece of complainant. Few days after the burial of Zargham Abbas a fight took place between me and above said Nazar Hussain. I gave him beating on the playing of Video. Nazar Hussain extended threats of dire consequences and due to this reason I have been falsely implicated in this case. All the P.Ws. are related to each other and are inimical towards me. "
10.The appellant however neither appeared as his own witness under Section 340(2), Cr.P.C. nor produced evidence in his defence. The learned trial Court at the end of trial convicted and sentenced the appellant vide judgment dated 23.4.2003 as noted above.
11.Learned counsel for the appellant contends that the appellant is absolutely innocent and he has been falsely implicated in this occurrence by concocting a false story. Learned counsel states that the matter relates to unseen occurrence; that there was no eye-witness of the occurrence; that the F.I.R. was recorded after a delay of nine months and even then name of the appellant was mentioned as only one of the suspects. It is contended that evidence of last seen was introduced after nine months which loses its value and similarly evidence of extra judicial confession brought on record through Ghulam Rasool, P.W.9 cousin of the complainant and Ghulam Raza P.W. 10 his brother is not natural; that in extra judicial confession it was stated that the appellant killed the deceased after committing sodomy by throttling. It is contended that in the opinion of the doctor matter regarding throttling was not mentioned. As per report of chemical examiner sodomy was committed but in absence of D.N.A. report the same does not connect the appellant in this matter.
Nothing was recovered from the appellant during investigation and that the only evidence of last seen and extra judicial confession is not sufficient to convict the appellant in this case therefore he is entitled to acquittal.
12.On the other hand learned Law Officer assisted by learned counsel for the complainant states that there was no reason for the complainant to falsely implicate the appellant in this case. He only showed his suspicion in the F.I.R. and after the post-mortem report it transpired that sodomy was committed with the deceased and thereafter he was killed. It is contended that extra judicial confession made by the appellant before P.Ws. 9 & 10 further corroborates the other circumstances; that the appellant has admitted that he has committed sodomy with the deceased and report of the chemical examiner is positive in this respect. It is lastly contended that the evidence of last seen coupled with extra judicial confession and the medical evidence bring the whole case in line and the appellant is not entitled to any exception.
13.We have heard the learned counsel for the parties and have gone through the record.
14.The occurrence statedly took place on 11.7.2000 at 5.00 p.m. when the victim/deceased Zargham Abbas aged 6/7 years went missing but the matter was not reported and on the next day on 12.7.2000 his dead body was recovered from the canal after it was informed by Khuda Bukhash and Ghulam Ali. Both these persons have not been produced by the prosecution. The deceased was hurried and the record shows that after about 43 days i,e, on 24.8.2000 the complainant showed his suspension that the deceased was murdered through strangulating and as such on his application to the Magistrate, dead body was exhumed on 4.9.2000 and post-mortem was conducted on 11.9.2000. Two visceras were sent to chemical examiner and final opinion regarding cause of death was kept reserved till receipt of report from the Bacteriologist and Chemical Examiner. After receipt of report on 7.4.2001 the doctor observed that the deceased was victim of sodomy and then was drowned. This report was given after going through the reports of chemical examiner and Bacteriologist. We have carefully gone through these reports. There is nowhere mentioned that the deceased died because of throttling or there was any injury on his neck.
15.The F.I.R. was registered after nine months and even then the appellant was only introduced as a suspect and on the very day of registration of the case the prosecution produced evidence in shape of last seen through Javaid Hussain, P.W. 12 who stated that on the day of occurrence i,e, nine months back he saw the deceased and the accused together near the graveyard. While appearing in Court he stated that after he saw the deceased and the appellant he went to Hyderabad and came back after nine months i,e, the date on which F.I.R. was registered. In these circumstances, the evidence of last seen becomes highly doubtful as no plausible reason has been brought on record as to why this P.W. remained quite for nine long months and suddenly on the day when the case was registered he made such statement to the police.
16.The prosecution also relied on the statements of Ghulam Rasool PW.9 and Ghulam Raza, P.W.
10 who have stated that on 13.4.2001 i,e, on the next clay of registration of F.I.R. the appellant made extra judicial confession that after committing sodomy he strangulated the deceased and threw his dead body in the canal. Ghulam Rasool PW.9 is real maternal cousin whereas Ghulam Raza, PW.10 is real brother of the complainant. So apparently they are interested witnesses and their statements have to be viewed critically and have to be relied upon only when corroborated by the other evidence. In arriving at this conclusion we are fortified by the dictum laid down by the apex Court in Sarfraz Khan vs. The State and two others (1996 SCM R 188) wherein it has been held as under: "The extra judicial confession is a weak type of evidence which can easily be procured whenever direct evidence of the crime is not available. So, while placing reliance on it, the Courts have emphasized the use of utmost care and caution.. A three-fold proof is required to make extra- judicial confession the basis of conviction."
No reason for the appellant to make such extra judicial confession before them just on the very next date of registration of F.I.R. has been brought on record. It is the prosecution case that while making extra judicial confession the appellant stated that after committing sodomy the deceased was done to death by pressing his neck and he was thrown in canal. The post-mortem report does not speak of death by throttling as no injury was observed by the doctor in this respect. Rather it was declared by the doctor that the deceased died because of drowning.
17. Extra judicial confession is always considered as weak type of evidence and can only be relied if such statement of accused is corroborated by other evidence, material or circumstances and if it is contradicted by evidence, circumstances and material like medical evidence, such claim of witnesses about statement of accused in form of extra judicial confession is not worth reliance and the same cannot be used against the accused. In the present case claim of the witnesses about extra judicial confession of the appellant before them is in contradiction with medical evidence so the same cannot be accepted in these circumstances.
18.It was also alleged by the Prosecution that the appellant took away gold ring and silver Kari (perhaps wrist watch) from the deceased. The appellant was arrested on 13.1.2004 but no incriminating article connecting the appellant with murder was recovered from him during investigation.
19.All these pieces of evidence have been examined in the light of the fact that case was registered after delay of nine months and by that time dead body had been recovered, post- mortem had been conducted and on the basis of reports of the chemical examiner and that of Bacteriologist, the doctor had finally opined that death had occurred due to drowning, but the witnesses insisted upon their claim that the appellant had stated by them that he strangulated the deceased. Although the report of the doctor regarding commission of sodomy upon the deceased was positive but we think that it would be hardly believable that stains of semen can be detected from a dead body which remained at for 24 hours in canal water and remained buried till 42 days and was in advance stage of putrefaction. It is also in our mind that the complainant had for the first time implicated the appellant in the F.I.R. after nine months of the occurrence and that too only to the extent of suspicion. The complainant had no suspicion against any one and even did not suspect that the deceased was murdered before application for exhumation was filed. Nothing has been brought on record which could have resulted in suspicion of the complainant against the appellant. Admittedly, there is no eye-witnesses of the occurrence and the case is based on circumstantial evidence. It is well settled law that in case of circumstantial evidence every part of the chain of circumstances has to be linked together in such a way that no link should be broken and all the circumstances should lead only to one conclusion and that is involvement of the accused in the main occurrence. Reliance can be placed on Altaf Hussain v. Fakhar Hussain (2008 SCM R 1103) in which it has been held as under: ..........So far as circumstantial evidence is concerned it does not lead to the conclusion in any manner that the respondent had any hand in the affair and caused the murder in question.
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 the other corner to the neck of the accused. Failure of one link will destroy the entire chain."
In this case we do not find sufficient evidence. In absence of sufficient evidence against him possibility of accused being innocent cannot be ruled out. So in the given circumstances the appellant is entitled to benefit of doubt.
20. In view of what has been noticed and discussed above, we find that the prosecution has failed to prove it's against the appellant. Consequently, Crl. Appeal No, 355 of 2003 is accepted, conviction and sentences awarded to the appellant are set aside and he is acquitted of the charge. He be set at liberty forthwith if not required to be detained in any other case.
21. Since the appellant has been acquitted, us such there is no question of enhancement of sentence. Crl. Revision No, 182 of 2003 is accordingly dismissed.