' CH. MUHAMMAD YOUNIS, J.---We intend to dispose of the instant Criminal Appeal as well as Murder Reference No,47/RWP of 2011 through this single order.
2. Briefly stated the prosecution version as contained in the F.I.R. Exh.PD/1 lodged by P.W.11 (Adalat Khan S.I.) is that on 27-12-2010 at 1-30 p.m. The Manager of P.C. Hotel Chakwal informed the police party (comprising Adalat Khan S.I., Mazhar Hussain A.S.-I., Samand Khan constable and Muhammad Ameer Head-Constable) present at Udharwal Chowk that in Room No,107 of his hotel he heard the hue and cry of a child who was probably being tortured. So the police party accompanied him and knocked at the door of the said room which was opened by the appellant Muhammad Yaqoob Ijaz after a considerable time. Having entered the room the police accompanied by the Manager of the Hotel (Qazi Ahsan Khalid) found the accused to be naked. He was beating the minor Samran Ali who was also lying naked. Within their sight the said child died.
Meanwhile the co-accused Mst. Saiqa Noreen (since acquitted) reached there along with her minor daughter and asked the police not to harass her husband because she had herself asked him to frighten the child as they were fed up of him and this child was a hurdle for the said Yaqoob Ijaz and Mst. Saiqa Noreen in their way as they were living together without `Nikah'. The complaint was sent to the Police Station for registration of case through Muhammad Ameer Head-Constable at about 2-10 p.m.
3. After carrying out the investigation the appellant and Mst. Saiqa Noreen were challaned and sent up for trial. The prosecution produced as many as eleven witnesses to prove their version whereas the appellant and the said Mst. Saiqa Noreen were examined under section 342, Cr.P.C. And they denied to have committed the offence. The defence plea taken by the appellant is re-produced as under:- "Mst. Saiqa Noreen was previously married with one Sajid Mehmood. The deceased son and one daughter were born out of their wed lock, then Sajid divorced her and she contracted marriage with me. She originally hailed from village Udhwal situated in District Chakwal. We all came to Chakwal because Mst. Saiqa Noreen wanted to sell out her ancestral property situated in village Udhwal. We took Room No,107 of PC Hotel on hire basis on 22-12-2010. Before 27-12-2010, we negotiated the sale of ancestral property of Mst. Saiqa Noreen. On 27-12-2010, Mst. Saiqa Noreen along with daughter went to Bazaar Chakwal to purchase some articles for use I was sleeping in above mentioned room. Samran Ali went out of the room to play. After some time I heard noise of the child coining from gallery when I came out of the room I saw that Samran Ali was lying naked in the gallery and was assaulted. I shouted that who committed assault/sodomy with the child and I took him to District Headquarters Hospital, Chakwal and when I reached there the staff of the hospital informed me that child had died. After handing over the dead body to the staff I rushed back to the hotel to inform the incident to my wife Mst. Saiqa Noreen co-accused. In the meanwhile Mst. Saiqa Noreen had reached the hotel. We both agitated the matter before the hotel manager namely Qazi Ahsan Khalid (P. W. 9) and asked him to call the police, on this PW-9 asked us to reach hospital and he is also coming there with the police and matter will be probed that who had committed the occurrence. Myself and my wife Mst. Saiqa Noreen reached District Headquarters Hospital, Chakwal. At about 2-30/ 3-00 p.m., one constable reached in the hospital and informed that S.I. Is coming. We waited for him and S.I. Reached there at about 5-30/6-00 p.m. Till that time police had joined hands with P. W.9 Qazi Ahsan Khalid hotel manager and by twisting the actual facts, got registered the case against me and my wife Mst. Saiqa to save the actual culprits. Police arrested us in the hospital. I am innocent and committed no offence at all and police also reached at the conclusion that I am innocent."
4. The appellant opted not to produce any defence evidence or get his statement recorded under section 340(2), Cr.P.0
5. The learned trial Court after hearing the arguments acquitted the co-accused Mst. Saiqa Noreen whereas the appellant was convicted and sentenced to death as ta'zir under section 302(b), P.P.C.
And he was further directed to pay compensation of Rs,2,00,000 to the legal heirs of the deceased.
He was also convicted under section 377, P.P.C. And sentenced to life imprisonment with a fine of Rs,2,00,000. Failing to pay the fine he was to undergo further six months' S.I.
6. The instant appeal has been preferred against the conviction awarded to the appellant by Mr. Muhammad Asghar Khan learned Additional Sessions Judge Chakwal vide judgment dated 25-6- 2011 on the grounds that the manager of the hotel in connivance with the local police falsely implicated the appellant in the case; that the offence was committed, by some employee of the hotel and just to save the real culprit and the reputation of the hotel the appellant was falsely involved in this case on the basis of a concocted story; that occurrence had not taken place in Room No,107 of the hotel; that the evidence of P.W.2, P.W.3, document Exh. PD (complaint) and the inquest report Exh. PM negate the prosecution story; that the recovery of last worn clothes of the deceased on 30-12-2010 also speaks of mala fide of the I.O. Who never found any such clothes in the room on 27-12-2010; that the complainant himself was the Investigating Officer of this case; that the trial Court disbelieved the evidence of P.W.10 (Mazhar Hussain) and P.W.11 (Adalat Khan S.I.) qua the acquitted accused; that the version of the complainant Adalat Khan S.-I. That the accused who opened the door after a considerable time on knocking thereof by the police was naked and he was still beating the minor was quite unnatural; that the conduct of the manager of the hotel who after hearing the cries of the minor went to the police instead of knocking at the door of Room No,107 was also unnatural and that he made several dishonest improvements in his statement while appearing in the Court. It was further pointed out that according to the complaint (Exh.PD) there was anal bleeding of the deceased but the mattress or its cover were not found to be blood or semen stained by the I.O. Or any other P.W. While summing up his arguments the learned counsel for the appellant maintained that no occurrence had in fact taken place in the room of the hotel as alleged by the prosecution as no blood or semen stain was found on the mattress etc. No semen grouping was got conducted. There was no evidence on the record regarding the commission of sodomy with the deceased and the prosecution solely relied on the postmortem report. The learned counsel maintained that one tainted piece of evidence cannot corroborate the other but the learned trial Court believed the prosecution version as gospal truth and convicted the appellant illegally. He maintained that the prosecution had miserably failed to connect the appellant with the commission of offence so he was liable to be acquitted. In support of his arguments he has referred to 1996 Pakistan Criminal Law Journal 1161, 1994 SCM R 1928, 1995 SCM R 1639.
7. The learned Law Officer has vehemently opposed the appeal and argued that the appellant was nominated in the F.I.R. He committed a brutal act of sodomy with the minor and then murdered him. Even on the person of the co-accused old healed bite mark was seen which connects the appellant with the commission of offence. All the prosecution witnesses had fully supported the prosecution version. Since the minor was in the room with the appellant so no other person could be roped in this case. The appellant was a pervert and the learned trial Court has rightly convicted him. The defective investigation cannot be made basis for the acquittal of the accused. As regards the contradictions pointed out by the learned counsel for the appellant the same are of trivial nature and cannot change the fate of the case. The learned Law Officer further maintained that the police had no enmity with the appellant to falsely implicate him in this case. Similarly the substitution is a rare phenomenon so there was no occasion for the police to spare the real culprit and implicate the appellant in this case. Keeping in view the gravity of the offence the learned trial Court rightly awarded the capital punishment to the appellant.
8. We have considered the arguments advanced from both the sides and have also gone through the impugned judgment as well as the evidence recorded by the trial Court. The submissions made by the learned counsel for the appellant are not without substance. The conduct of the Manager of the hotel P.W.9 Qazi Ahsan Khalid is quite unnatural. He being responsible for the administration of the hotel was not expected in such an emergent situation to go to the police in Udharwal Chowk and inform them about the cries of the deceased from Room No,107. The immediate reaction of the manager would have been to knock at the door of the said room to know about the cause of crying of the child. After making statement to the I.O. Under section 161, Cr.P.C. (Exh.DA) when he appeared in the witness box he made several dishonest improvements to bring the case in line with the prosecution story and make up the deficiency in the prosecution case. He deposed before the trial court that when he heard the cries of the child he knocked at the door of the said room but no one opened the door and thereafter he went to the counter and dialed 15, but when confronted with the Exh.DA it was not found to be so recorded. In his statement before the Court he stated that the police van was already parked at Udharwal Chowk but in Exh.DA he stated that the said police van was parked outside (the hotel). The evidence of the said Manager, P.W.10 Mazhar Hussain A.S.-I. And the I.O. That the appellant had opened the door after one/one and a half minute of the knocking at the door and still the appellant was found to be naked is quite unnatural and unbelievable. The appellant had sufficient time to put on clothes before opening the door. Any person of common prudence and especially a person who is guilty conscience would not remain naked before opening the door especially when he had sufficient time to wear the clothes. Then none of the witnesses and the I.O. Found even a stain of blood or semen on the mattress on which the minor was allegedly lying in injured condition especially when the anus was found to be bleeding. It was also admitted by the complainant as well as the Manager of the hotel and P.W.10 Mazhar Hussain A.S.-I. That in spite of search of the room the Investigating Officer found no piece of cloth or towel which could be used for cleaning the blood or semen. P.W.10 Mazhar Hussain A.S.-I. Introduced a new story when he stated that redness was observed on the private parts of the appellant but none else stated so. If it was so the question arises why he was not got medically examined on the same day by the I.O. He further deposed that P.W. Samand Khan was present inside the room with the I.O and other P.Ws. When he was sent to bring handcuffs from the vehicle and the appellant was arrested and dead body was handed over to the said Samand Khan for postmortem but the said constable negated the version of P.W.10.
Similarly the conduct of the I.O. Was also not above board. He himself became the complainant of this case and without any lawful justification he started investigating this case himself without any.
Entrustment. He was an eye-witness of the occurrence as per complaint (Exh.PD) so the case should have been investigated by some other independent officer. Admittedly 5/6 Investigating Officers were available in the Police Station but P.W.1l Adalat Khan S.-I. Who was the complainant of the case himself assumed the role of an Investigating Officer which amounts to mockery of law.
The story narrated by the I.O. Contained in the complaint and the version of P.W.9 and P.W.10 stands negated by P.W.2 Muhammad Ameer Head-Constable and P.W.3 Samand Khan constable.
According to the complainant/I.O. After drafting the complaint at hotel he handed over the complaint to P.W.2 Muhammad Arneer and sent him to the Police Station for registration of case but the said witness Muhammad Ameer while appearing in the witness, box categorically negated the version of the complainant/I.O. And stated that for the first time he joined the investigation of this case on 30-12-2010 and not on 27-12-2010. He even did not know about the occurrence and he saw the appellant for the first time at 8/9 p.m. In the police station on 27-12-2010 so the story of the I.O. And the Manager of the Hotel about arresting the appellant from the hotel and sending the complaint therefrom to the Police Station is falsified by this witness. The inordinate delay' of 4 days in recovery of the last worn clothes of the deceased was also unexplained and it was without any lawful justification. If he inspected the Room No,107 at the time of occurrence there was no occasion for him not to take into possession each and every incriminating article on the same day including the clothes of the deceased. Similarly the complainant/I.O. Claimed that P.W.3 Samand Khan also accompanied him to the hotel and he handed over the dead body of the deceased to him at the said hotel for postmortem but the said witness while appearing as P.W.3 in the witness box falsified the version of the 1.0/ complainant by deposing that he remained present in the Police Station and the dead body was handed over to him at DHQ Hospital Chakwal and not at the P.C.
Hotel. The testimony of P.W.9 to 11 stands shattered by Samand Khan constable and Muhammad Ameer Head-constable. So the story of the I.O. And P.W.9 as well as P.W.10 that the dead body was dispatched from P.C. Hotel or that the appellant was arrested from the room of the Hotel and not from DHQ Hospital Chakwal stands negated. In the Inquest Report Exh.PM some important Columns No,22 and 23 were left blank. The pent and shirt of the deceased are mentioned in Column No,7 of the said report. If in spite of search of the room by the I.O. On 27-12-2010 nothing except the pillow was recovered and the key of the room also remained with the I.O. Till 30-12-2010, how the clothes of the deceased could be recovered from the same room after 3 or 4 days. The absence of any blood or semen stain on the mattress or in the room of the hotel also creates a grave doubt about the veracity of the I.O. And the manager of the hotel and it seems that the occurrence did not take place in the said room. If the deceased was bleeding and had also several other injuries of biting etc. The mattress would have definitely been blood stained and semen stained. As regards the statement of the co-accused Mst. Saiqa Noreen that she had authorized the appellant to beat and frighten the deceased is also not proved on the record. Even otherwise it is unnatural. Admittedly no semen grouping and DNA test was got conducted by the I.O. To connect the appellant with the commission of offence. No employees of the hotel were interrogated. The medical evidence is also self contradictory regarding the cause of death, as pointed out, by the learned counsel for the appellant.
' Yet another important aspect of the matter noticed by us which could not be ignored is that according to the I.O. The appellant and Mst. Saiqa Noreen were arrested from the hotel but according to the postmortem report Exh.PE the documents were received from the police at 6-00 p.m. And autopsy was conducted at 8-00 p.m. On 27-12-2010 whereas the dead body of the deceased Samran Ali was identified by Mst. Saiqa Noreen. If she had already been arrested alongwith the appellant from the hotel at about 2-00 p.m. How she could identify the dead body of her son at night as there is nothing on the record to show that she was brought to the hospital from the Police Station in custody for this purpose. So this fact also negates the prosecution story regarding the dispatch of the body from the hotel and arrest of the accused therefrom.
From the evidence on the record the offence is not proved to have been committed in the room of the hotel as alleged by the prosecution. Had the murder been committed by the appellant, the mother of the child would have never spared him due to natural love and affection of a mother.
' The prosecution story in the instant case does not appeal to the reason and is not found to be natural. We rely on 2003 SCM R 1466 (Mst. Shamim and 2 others v. The State and another) in which the august Supreme Court of Pakistan observed as under:-- "Prosecution story being foundation on which edifice of the prosecution case was raised occupied a pivotal position in a case, it should, therefore, stand to reason and must be natural, convincing and free from any inherent improbability and it was neither safe to believe a prosecution story which did not meet said requirements nor a prosecution case based on improbable prosecution story could sustain conviction."
9. In the light of the above discussion we have reached an irresistible conclusion that the prosecution has miserably failed to prove its case against the appellant beyond any shadow of doubt. It is full of material contradictions which create a grave doubt. The defence version when put in juxta position with that of the prosecution seems to be more probable. Since the appellant being resident of Dera Ghazi Khan was a stranger in Chakwal so the Manager of the. Hotel in league with the local police seems to have falsely implicated him in this case along with the mother of the deceased minor just to save the employees and the F reputation of the Hotel. The learned trial Court, has ignored all the material discrepancies and contradictions in the prosecution case and the established principles of law while convicting the appellant so the impugned judgment is not sustainable in the eye of law. In these circumstances we allow the appeal and acquit the appellant giving him benefit of doubt.
' The murder reference is answered in NEGATIVE.