' IBAD-UR-REHMAN LODHI, J.---Javed Iqbal son of Jan Muhammad, Muhammad Naeem son of Abdul Haque and Muhammad Saleem son of Muhammad Amin were tried by learned Additional Sessions Judge, Kasur in case F.I.R. No, 137, dated 16-4-2005 under section 302 read with section 34 of Pakistan Penal Code, 1860 registered at Police Station Khudian, district Kasur, for committing the murder of Muhammad Waqar. Vide judgment dated 22-12-2006 the learned trial Court convicted and sentenced the appellants as under:--
(i) Javed Iqbal under section 302(b) read with section 34, P.P.C. to death with further direction to pay. Rs,1,00,000 as compensation to the legal heirs of Muhammad Waqar deceased as envisaged by the relevant provisions of section 544-A Cr.P.C. Or in default thereof to further undergo six months' Simple Imprisonment.
(ii) Muhammad Naeem and Muhammad Saleem under section 302(b) read with section 34 P.P.C.
To Life Imprisonment each with, further direction to pay Rs,1,00,000 each as compensation to the legal heirs of Muhammad. Waqar deceased as envisaged by the relevant provisions of Section 544-A Cr.P.C. Or in default thereof to further undergo six months' Simple Imprisonment each.
' Benefit of section 382-B C. Was, however, extended to them..
2. Javed Iqbal, Muhammad Naeem and Muhammad Saleem appellants have approached this Court by filing Criminal Appeals Nos.1940 of 2006, 120 and 962 of 2007 against their conviction and sentence passed by the learned trial Court. 2007 seeking confirmation of death sentence or otherwise awarded to Javed Iqbal-appellant has also been sent to this Court as required by Section 374 Cr.P.C. All these matters are being disposed of together through this single judgment.
3. Muhammad Iqbal-complainant (P.W.9) lodged the matter through F.I.R. (Exh.P-I/1) reporting that on 6-4-2005 his son, namely, Muhammad Waqar, aged 13/14 years, a student of 7th class was sent by the mason working in his house to purchase a "Paan", who went to Bazar but never came back.
The matter to the police was reported, for the time, on 16-4-2005, when on receipt of information about availability a dead body in the Bamboo crop, the complainant along with oh Ter P.Ws. Visited the nominated area and found a skeleton of human body without head, who was identified as that of his son Muhammad Waqar with the help of the teeth and a shirt. Even in such delayed F.I.R., no one has been nominated as a suspect. Thereafter, on 19-4-2005 by means of a statement three persons i,e, Javed Iqbal, Muhammad Naeem and Muhammad Saleem were specifically complainant with a further allegation that his son Muhammad Waqar was done to death by said nominated accused after commission of sodomy d by the with the deceased by the accused persons. It was, thus, that investigating agency proceeded to investigate after associating the nominated accused persons in the investigation and after completion of all formalities furnished a report under section 173 of the Criminal Procedure Code, 1898 before the learned trial Court.
4. The accused persons were charged by the learned trial Court under section 302 read with section 34 of Pakistan Penal Code. During trial, the prosecution produced eighteen witnesses in support of its case to the documentary evidence mainly consists of recovery memos, blood stained earth, blood stained clothes, bicycle, knife and the documents pertaining to the report of identification parade and postmortem report, etc. After getting the statements persons recorded under section 342 Criminal Procedure Code 1898, learned trial Court by means of the impugned judgment dated 22-12-2006 convicted and sentenced the appellants as aforementioned.
5. In this case, the entire case of the prosecution rests on circumstantial evidence in addition to last seen evidence and stated extra judicial confession The medical evidence viz, postmortem report conducted by Dr. Adnan Hakim (P.W.16) is again of much significance in this case. We would be dealing separately with the points which have been pressed in service by the prosecution before learned trial Court as well as before us in appeals.
6. Last seen evidence mainly consists on the statement of Javed Ashiq son of Muhammad Ashiq (P.W.14), who is nephew of the complainant, and who informed the complainant that he saw Muhammad Waqar deceased going on a bicycle with some unknown persons on 6-4-2005.
Throughout the proceedings of the case, date and time as to when Javed Ashiq (P.W.14) saw Muhammad Waqar going on bicycle has nowhere been provided, thus, it will remain a mystery as to whether P.W.14 has actually witnessed Muhammad Waqar going with some unknown persons on a bicycle on the fateful day.
7. The other evidence in order to prove that the body found in decomposed position in the Bamboo crop belonging to Muhammad Ameen was of Muhammad Waqar deceased was the statement of Muhammad Javed son of Muhammad Yaqoob (P.W.7), who on 16-4-2005 informed the complainant that he saw a decomposed body in the stated Bamboo crop and thereafter the complainant along with Muhammad Javed (P.W.7), Munir Ahmed (P.W.8) and Bashir Ahmed (P.W.15) went to that place and identified the body as that of Muhammad Waqar deceased with the help of teeth and a shirt. The body, which was examined by Dr. Adnan Hakim (P. W.16), was reported to be a complete skeleton with no flesh on it and therefore, the doctor conducting postmortem examination was not in a position to ascertain the cause of death.
8. On the question as to how much period is required for a human body to be completely decomposed, we have looked into medical jurisprudence and other material available on the point and are of the view that, following death, the human body progresses through five basic stages of decomposition:--
(i) Fresh: The fresh stage begins immediately after death when the circulatory system (heart beating/pumping blood) steps functioning. It is during this stage that the blood will settle with gravity creating a condition known as lividity. After several hours the muscles will also begin to stiffen in a process known as rigor mortis. The body temperature will also begin to acclimate to the environment. Cells will begin to break down and release enzymes during a process called autolysis which can cause blisters on the skin. The anaerobic organisms in the digestive tract will begin to multiply, producing acids and gases (the source of the bad odors). This process is often referred to as putrefaction.
(ii) Bloat: As the name implies, the gases being produced during putrefaction begin to build and will give the body a distended appearance. Gases and fluid will eventually escape through the natural orifices o as the pressure builds. As the gastrointestinal bacteria multiply and can lead to conditions like marbling which is a discoloration pattern seen in the skin.
(iii) Active Decay: During this phase the body begins to lose much of its fluids and mass (tissue) through purge and insect and/or vertebrate scavenging (coyote fox, lion, etc). During this phase you may see very large maggot masses and notice a considerable increase in foul odours.
(iv) Advanced Decay: This phase is the end of the active decay process. Temperatures can either speed up (heat) or slow down (cold) how quickly a body reaches this space. The body has very little body mass and soil staining of the surrounding soils is still evident. This soil staining (from body fluids) may actually kill some of the surrounding vegetation temporarily. Maggots will migrate away from the body to pupate and flies will cease laying eggs.
(v) Dry/Skeletal: This phase is the last measurable stage of decomposition. The timing of this stage varies widely by environment. It might take months. If there is any skin left it will be leather-like and very tough.
Mostly the body is reduced to bones and tissue. There is no biomass available for diver colonization. Some beetles and adventitious insects may colonize a body for shelter or feeding on other insects and connective tissue. Over time the bones may "bleach" (turn white) with se insect exposure to sunlight and eventually will begin to exhibit cracks after several years. These weathering cracks are distinctive and would not be confused with a fresh break (injury) unless by an inexperienced analyst.
' When Parikh's deals on this subject, as provided in Parikh's Textbook of Medical Jurisprudence and Taxicology (Fifth Edition), draws the following conclusion:-
(a) In 5 to 12 days, colliquative (colliquative-liquifaction) putrefaction begins. The various tissues become soft and loose and are converted into a semi fluid black mass. They ultimately liquefy and breakdown. Only the more resistant viscera which putrefy in 2-3 weeks are distinguishable.
(b) The body is thus skeletonised in 1 to 3 months.
(c) Further provides that thus the importance of autopsy even in states of advanced decomposition is plain, for organs like kidneys, uterus or prostate and blood vessels may still remain and provide vital information. Vascular walls resist decomposition and evidence of coronary insufficiency can often be discovered.
9. After having gone through the above opinion of experts and particularly keeping in view the fact that on 10th day of the missing of Muhammad Waqar deceased when a skeleton was found, it was believed by the P. Ws. And the complainant to that of Muhammad Waqar deceased but in absence of any evidence with regard to the attack of animals on the dead body of deceased, it is not believable that dead body of human being became completely decomposed within a period of ten days and converted into a complete skeletion.
10. A Division Bench of Madhya Pardesh High Court in case of "Shobhau alias Shubhau, Appellant v.
State of M. P, Respondent" (1998 Crl.LJ 3934) in a case of similar nature has found that when cause of death could not be known on postmortem for the reason that only skeleton was produced before the doctor for conduct of postmortem, the prosecution ought to have referred the dead body to Anatomy Expert, which was not done in the present case, and that was considered as serious lacuna in the prosecution case and in absence of any ligature mark on the body, it was found difficult to hold that the death was homicidal and not natural.
11, To prove an offence of murder the death should be homicidal of which onus in a criminal trial is upon the prosecution. In absence of legal proof of the death being homicidal, because of serious lacuna of not obtaining the report of Anatomy Expert to prove homicidal death, the benefit must go to the accused and not to the prosecution, as this seals the fate of the prosecution. In our view, the prosecution has failed to prove with convincing evidence that a skeleton found on 16-4-2005 in the Bamboo crop of Muhammad Ameen was that of Muhammad Waqar deceased and even if it is believed that the said skeleton was of the body of Muhammad Waqar deceased, the prosecution would still fail to establish the homicidal death.
12. The other limb of evidence, which is being pressed in service by the prosecution is the last seen evidence mainly rests on the statements of Shaukat Ayyaz (P.W.10) and Muhammad Timer (P.W.11), who subsequently deposed that they both saw all the accused coming out from Bamboo crop on 6-4-2005. It is astonishing as to why till 19-4-2005 when, for the first time, they disclosed this fact of coming out all the accused from Bamboo crop was kept secret notwithstanding the fact that d was missing since 6-4-2005. Even these two witnesses never deposed that Muhammad Waqar was seen in the company of said accused persons at the relevant time. Merely that the accused persons were gedly seen coming out from Bamboo crop would not the accused persons were lastly seen in the company of the deceased. While discussing the deposition of Javed Ashiq (P.W.I4), we have already found that the prosecution has failed to read any convincing evidence through the said witness to show as to on which date and at what time the deceased was lastly seen in the company of any of the accused.
13. The other circumstance which is being relied upon by the prosecution is the stated extra judicial confession made by the accused persons anal in this regard Sajid Rasheed (P.W.12) and Khushi Muhammad (P.W.13) were produced. Noteworthy that, 19-4-2005, was the date when the complainant nominated accused persons as responsible of causing death of his son, whereas, the prosecution has developed a story of making extra judicial confession on the very next day i,e, 20- 4-2005 before completely irrelevant persons. It is in the prosecution evidence that it was Javed Iqbal, who in presence of other co-accused persons, confessed before Sajid Rasheed (P.W.12) about his guilt and beseeched for his help and it is also an admitted position that said Sajid Rasheed was not previously known to Javed Iqbal accused. It is beyond understanding as to how the accused persons opened their breast by confessing a guilty of murder before a person, who was not previously known to them. Thus, in our view, it seems that evidence with regard to extra judicial confession on the part of the prosecution is result of padding by the prosecution in order to add some colour in the faded picture of the prosecution.
14. The prosecution has shown the recovery knife (P.6) from the place from where the skeleton of human body was found in order to connect Javed Iqbal-appellant with the use of such items. It is again beyond understanding as to how when Muhammad Javed son of Muhammad Yaqoob (P.W.7) had seen the skeleton of body on 16-4-2005 how a bicycle which was not a thing conveniently to be ignored was not seen by at the same place and again that when on 23-5-2005, according to the prosecution, during investigation Javed Iqbal-accused disclosed that he could get recovered bicycle and knife from the scene of occurrence, why only a bicycle was shown to have been recovered him on 23-5-2005 and recovery of knife was kept of bicycle (P5) and a pending and it was made after two days i,e, 25-5-2005. Notwithstanding the fact that according to the prosecution, presence of both bicycle and knife was disclosed on 23-5-2005 and on the same day the said accused person Javed Iqbal was made to lead the recovery of bicycle from said place. The statement of Munir Ahmed (P.W.8) has caused serious doubts upon the recovery process, when he deposed that knife (P6) was also recovered on 23-5-2005. The complainant and the witnesses viz. Munir Ahmed (P.W.8) and Bashir Ahmed (P.W.15) when after getting information of presence of skeleton in the Bamboo crop visited the said place on 16-4-2005 also remained ignorant with regard to the presence of these two items at the scene of crime. The recoveries are, thus, also not believable.
15. In a case where entire prosecution version rests on the circumstantial evidence, all circumstances from which conclusion of guilt is to be drawn must be fully established. ' The prosecution has to travel all the way to establish fully the chain of evidence which should be consistent only with the hypothesis of the guilt of the accused persons and this circumstance should be of conclusive nature and definite tendency. The circumstances must be satisfactorily established and the proved circumstances must bring home the offence to the accused beyond all reasonable doubts. It is not necessary that each circumstance by itself be conclusive, but cumulatively must form unbroken chain of events leading of the proof of the guilt. If such circumstances or some of them can be explained by any of the reasonable hypothesis the accused must have the benefit of such hypothesis. In assessing the evidence, imaginary possibilities have no role to play. When there is no direct evidence to the commission of murder and case rests entirely on circumstantial evidence, the chain of events furnished by the circumstances should be so far complete as not to leave any reasonable ground for conclusion consistent with the innocence of the accused. Therefore, on the basis of what has come on record, in our view, the conviction of the appellants cannot be maintained under section 302(b) Pakistan Penal Code, 1860 and there is no escape but to allow these appeals by setting aside the conviction and sentence awarded by means of impugned judgment and acquittal of the appellants.
16. In view of the above discussion, we accept Criminal Appeals Nos. 1940 of 2006, 120 and 962 of 2007 filed by the appellants, set aside their conviction and sentence passed by learned trial court and acquit them from the charge. Muhammad Naeem and Muhammad Saleem-appellants are on bail and their bail bonds are hereby discharged. Javed Iqbal-appellant is ordered to be released forthwith if not required in any other case.
17. Death sentence awarded to Javed Iqbal-appellant by the learned trial Court is Not confirmed and is answered in the negative.