' ABDUL SAM! KHAN, J.---Through this Appeal under section 410, Cr.P.C. Shahbaz Hussain appellant has called in question the judgment dated 1-4-2009 handed down by the learned Additional Sessions Judge, Jhelum wherein the appellant was convicted under section 302(b), P.P.C. For causing the death of Aqeel Arshad deceased and was sentenced to imprisonment for life. He was also ordered to pay compensation of Rs.1,00,000 to the heirs of the deceased under section 544-A.
Cr.P.C. Or in default of payment thereof to further undergo simple imprisonment for six months. He was also convicted for an offence under section 367-A, P.P.C. And was sentenced to undergo rigorous imprisonment for 25 years with fine of Rs.1,00,000. He was further convicted for an offence under section 377, P.P.C. And was sentenced to life imprisonment. He was also convicted under section 336, P.P.C. And was liable to pay Arsh which is equal to Diyat, i,e. Rs.5,00,000 in lump sum.
The appellant has challenged his convictions and sentences before this Court through the instant appeal whereas the complainant has filed Criminal Revision No. 75 of 2009 for enhancing the convictions and sentences of the appellant and has prayed for awarding capital punishment of death ' to the appellant. I propose to decide both these matters together through this single judgment.
2. According to the prosecution story set forth in the F.I.R., Arshad Mehmood complainant was Munshi of Shabbir contractor. On the fateful day when he came to his house at 10-30 a.m as usual his wife Mst. Zaitoon Begum told him that their, elder son namely Aqeel Arshad, aged about 5 years, to whom she had given bath and changed his clothes, had not returned home who had proceeded with Shahbaz for playing outside the house. The complainant after receiving information of disappearing of his son proceeded towards southern side of village in the company of Tauqeer Ahmad and Pervaiz Akhtar when they reached near land of Bashir lumberdar which was barren and saroots plan shrubs had grown there. When they reached near saroot bushes at about 11-00 am the hue and cry of Aqeel Arshad attracted them upon which they proceeded ahead and called him in loud voice but could not get his answer. Thereafter they continued proceeding and saw that Shahbaz had pressed throat of Aqeel Arshad. Upon seeing them Shahbaz by taking advantage of saroot bushes fled away holding chhuri in his hand. When they reached near Aqeel Arshad they found his trouser put off partly, his penis was found cut lying near his body, mark of injuries were present on his abdomen and bluish signs were present on his neck. Aqeel Arshad had lost his life.
Shahbaz had done to death the' son of the complainant in order to commit sodomy with him. Upon reaching the police at the spot statement of the complainant was got recorded and formal F.I.R.
No. 97, dated 13-5-2007 had been registered at Police Station Dina, District Jhelum in respect of offence under sections 367-A/377/336/302, P P. C
3. The investigation in this case was conducted by Abdul Hameed, S.I. Who inspected the place of occurrence; recorded the statement of the complainant, Exh.PA, prepared rough site-plan Exh.PL; send blood-stained straws vide Exh.PH; prepared injury statement Exh.PC/1; secured penis from the place of occurrence vide recovery memo Exh.PG; on 15-5-2007 arrested the appellant; on 18-5- 2007 recovered chhuri P4 from Shahbaz Hussain appellant and after sealing it into parcel prepared recovery memo Exh.P.J; recorded the statement of the prosecution witnesses under section 161, Cr.P.C. Found the appellant guilty and submitted report under section 173, Cr.P.C. Before the learned trial Court. Charge was framed against the accused on 26-11-2008.
4. The prosecution in order to prove its case examined as many as 13 witnesses before the learned trial Court. The ocular account in this case has been furnished by Arshad Mahmood complainant (P.W.11) and Pervaiz Akhtar (P.W.12). Aurangzaib (P.W.8) appeared, as recovery witness of chhuri P4.
Abdul Hameed, S.I./ Investigating Officer appeared before the learned trial Court as (P.W.13) who investigated the case in hand and stated about various steps taken during the investigation of this case. The medical evidence in this case was furnished by Dr. Hafiz Abdul Rehman, Medical Officer, DHQ Hospital, Jhelum who conducted the post-mortem of the deceased Exh.PC. Rest of the prosecution witnesses are almost formal in nature.
5. In his statement recorded under section 342, Cr.P.C. The appellant denied all the allegations levelled against him by the complainant and professed his innocence. He did not make statement on oath under section 340(2), Cr.P.C. In response to a question that why this case against you the appellant replied as under:- "1 have been falsely involved in this case. I have been made scapegoat. Whole of the village belongs to Jatt tribe, whereas, I am poor and in minority in the village, therefore, 1 have been falsely involved in this case. All the P. Ws. Are related inter se. The occurrence is unseen after due consultation and false story has been fabricated against me".
6. Upon completion of the trial the learned trial Court found the case against the appellant to have been proved beyond any reasonable doubt and, thus, convicted and sentenced him as mentioned above. Hence, this appeal before this Court and revision petition for enhancement of sentence.
7. The learned counsel for the appellant contends that the judgment dated 1-4-2009 passed by the learned Additional Sessions Judge, Jhelum is result of misreading and non-reading of evidence recorded during trial. The prosecution has failed to set up any motive against the appellant in the F.I.R. To establish why the appellant would commit murder of Aqeel Arshad deceased. The appellant has been made scapegoat in this case due to difference of caste and also belonging to minority in the village. The presence of the complainant (P.W.11) and the eye-witness (P.W.12) at the spot is not .Proved at the relevant time as conduct showed by them thereat does not appeal to a prudent mind because both the eye-witnesses being close relatives of the deceased let loose the appellant to make his good escape from the scene of crime without being armed with deadly weapon. Had the P.Ws. Present at the place of occurrence they would have caught the appellant at the spot. The last-seen evidence has not been produced by the prosecution before the learned trial Court in support of the allegation set forth in the F.I.R. It was an unseen occurrence committed by an unknown accused and the appellant has falsely been roped in this case. Both, the eye- witnesses are interested, related and chance witnesses whose presence at the spot is not established from the evidence adduced by them before the learned trial Court. According to the prosecution stance many persons were gathered at the place of occurrence but no independent person was produced by the complainant in this case before the learned trial Court to prove the case. In their. Statements made before the learned trial Court both the eye-witnesses had made some improvements to bring the case in line with the medical evidence. The postmortem examination of the deceased has been conducted in this case with a considerable delay which fact is sufficient to draw an inference that the complaint had been made to the police after postmortem examination of the deceased. The site-plan does not bear the place of accused and the eye-witnesses which shows that the eyewitnesses were not present at the scene of the crime at relevant time. The appellant was 9/10 years at the time of occurrence and that he was not capable enough to commit sodomy which fact negates the medical evidence in this case, According to the eye-witnesses when they reached near the deceased he was taking his last breathe whereas according to the doctor the death was immediate which fact shows contradiction between the ocular account and the medical evidence. The recovery has been planted upon the appellant which was a conventional weapon of offence and available in every house. The prosecution has miserably failed to prove its case against the appellant and it is golden principle of criminal jurisprudence that benefit of doubt, if any, has to be given to the appellant not as a matter of grace but as a matter of right. Only one circumstance creating doubt is enough to break the chain of the prosecution tied around the neck of the appellant and the same is also sufficient to acquit the appellant of the charge but in this case the evidence adduced by the eyewitnesses is full of contradictions, result of improvement, thus, the conviction is not - justified at all. The learned counsel for the appellant relied upon 2003 M LD 1316, 2010 SCM R 374, 2010 YLR 303 and 2011 SCM R 208.
8. On the other hand the learned Deputy Prosecutor-General assisted by the learned counsel for the complainant contends that the appellant is nominated in the promptly lodged F.I.R. With specific role of committing sodomy and thereafter throttling the deceased. There is no enmity between the parties to falsely involve the appellant in this case. The parties are resident of same- locality, they were known to each other so there was no chance of mistaken identity or substitution of real culprit in lieu of the appellant. Even otherwise the appellant has failed to establish that why the complainant, father of the deceased would let off the real culprit and falsely involve him in this case. The role attributed to the appellant is also borne out from the Post-mortem Examination Report. The medical evidence in this case had provided full corroboration to the ocular account furnished by the eyewitnesses. It is a case of single accused. The prosecution witnesses had proved this case through cogent and confidence-inspiring evidence and in spite of lengthy cross- examination by the defence they remained consistent on all material points. The prosecution has successfully proved its case against the appellant in shape of ocular account duly corroborated by the medical evidence and supported by the recovery of weapon of offence.
9. I have heard the learned counsel for the appellant, the learned Deputy Prosecutor-General, the learned counsel for the complainant and have also perused the record of this case with great care and caution. It has been observed by this Court that the occurrence in this case had taken place on 13-5-2007 at about 11-00 a.m. And the same has . Been reported by the complainant at the spot to the police on the same day at 2-50 a.m. And F.I.R. In this case had been registered at 4-25 p.m.
All these facts show that matter was reported to police with sufficient promptitude and the same facts also made it crystal clear that the A matter was reported to the police without deliberations or consultations by the complainant. Although the defence had tried to establish that the post- mortem examination of the deceased has been conducted in this case with a considerable delay which shows deliberations and consultations over the matter yet it has remained unable to prove this fact from the evidence available in this case.
10. To prove the case against the appellant prosecution examined Arshad Mahrnood complainant (P. W 11) and Pervaiz Akhtar (P.W.12) who both had sufficiently explained the mode and manner of the occurrence, place of occurrence locale of injury sustained by the deceased on his private part as well as abdomen, bluish sign on the neck of the deceased and kind of weapon used during the same. Both have categorically stated before the learhed B trial Court that it was only the appellant who first committed sodomy, cut his penis and then throttled him to conceal evidence against him.
It was only the appellant who is responsible for committing the Qatl-eAmd of the deceased. Both the witnesses were subjected to lengthy cross-examination by the defence but both of them remained consistent on all material aspects and successfully given answers of all the questions raised by the defence. During the arguments the learned counsel for the appellant has laid greata emphasis to disprove the presence of the eye-witnesses at the spot, at relevant time but he remained unable to show anything from the record in support of his submissions or remained unable to establish their absence from the scene of the crime through any material produced by the defence in evidence. So the presence of Arshad Mahmood (P.W.11) and Pervaiz Akhtar (P.W.13) at the place of occurrence at the relevant time is proved from trustworthy and reliable evidence. It is also an admitted fact that the parties to this case were resident of same locality and they were known to each other so there was no question of mistaken identity of the appellant in this case.
Moreover it does not appeal to a prudent mind that a father would let off the real culprit who committed the murder of his elder son and involved a false person.
11. The defence has also seriously criticized that the eye-witnesses have made improvement in their statements adduced before the learned trial Court wherein they have categorically stated that when they reached near the deceased he took his last breath whereas the same fact is not mentioned in the F.I.R. Rather it has been mentioned therein that before they reached the deceased he had already died. In this context shall observe here that such type of improvement, if any, has no vital effect on the case of prosecution because the appellant had duly been witnessed by them pressing the throat of the deceased and the prosecution had not brought on record any dying declaration to falsely involve the appellant in this case, Even otherwise both the eye- witnesses had described each and every circumstance which they had seen at the place of occurrence and they had no need to exaggerate the matter to take any benefit. Thus, I am confident enough to observe here that the prosecution has proved the ocular account through sound, cogent, motivating, trustworthy, reliable and confidence-inspiring eye-witness account.
12. Medical evidence in this case furnished by Dr. Hafiz Abdul Rehman, MO, DHQ Hospital, Jhelum (P.W.2) is absolutely in line with the ocular account. I have noticed that statement of doctor made before the learned trial Court was subjected to cross-examination by the defence but nothing helpful could be extracted from the same. Post-mortem Examination Report fully corroborates the ocular account regarding cutting of penis, weapon of offence used by the appellant, fact of throttling and committing of sodomy with the deceased. According to the opinion of the Doctor cause of death was due to asphyxia by manual throttling and also due to blood lost by amputation of the penis. The act of sodomy has also been established from the report of Chemical Examiner Exh.PB which is positive. The .Doctor had also seen two abrasions around the throat/neck of deceased and two lacerated wounds, i.e. 3 x 1 cm (LXW) 5 cm above the umbilicus which not only injured the skin but also injured the underlying vessels and damaged the soft tissues. Dr. Zahoor-' ul-Haq (P.W.1) who medically examined the appellant, aged about 14 years has explained in his cross-examination that the appellant having was incapable to perform E sexual act in ordinary circumstances. In response to a question that how he gathered his opinion the doctor had explained that the appellant has secondary sex characters mustaches axilary hairs, pubic hairs were well developed and external genetalia were well developed. Mere delay in conducting post- mortem examination of the deceased does not by itself demolish the whole structure of evidence built by the prosecution to bring the guilt of the appellant home. Thus, the medical evidence has provided full support to the ocular account in this case.
13. During the investigation of this case the appellant had led to recovery of chhuri P4 which had been taken into custody by the Investigating Officer vide recovery memo Exh.PJ. According to the report of Serologist Exh.PM/1 the chhuri was stained with human blood. Thus, the recovery also provides sufficient support to the ocular account.
14. This is a case of single accused and substitution is a rare phenomenon. I am not going to believe that close kith and kin of the deceased, in a daylight occurrence, immediately reported to the police within shortest possible time, could substitute the real culprit with the present appellant.
In such circumstances the Hon'ble Supreme Court of Pakistan his observed in the case of Khizar Hayat v. The State (2011 SCM R 429):-- "In addition to it, it is a case of single accused, who has fired upon the deceased-Ghulam Ghous, therefore, substitution of a culprit is not possible besides it is a rare phenomenon where a witness whose close relative has been murdered would substitute the accused with an innocent person thereby allowing the actual accused to go scot-free".
' I also respectfully refer the case of Khalid Saif Ullah v. The State (2008 SCM R 688) wherein Hon'ble Supreme Court of Pakistan has observed, as under:-- "Substitution is a phenomenon of a rare occurrence because even the interested witnesses would not normally allow real culprits for the murder of their relations let off by involving innocent persons. In this context, reference can usefully be made to the case of Irshad Ahmad and others v. The State and others PLD 1996 SC 138".
15. In view of all above I am of the considered view that the learned trial Court has rightly convicted and sentenced the appellant under section 302(b), P.P.C. And has already considered the appellant to be a juvenile (although not agitated by the appellant during trial or in his statement under section 342, Cr.P.C.) and awarded film life imprisonment. I do not find any good reason to differ with the judgment passed by the learned trial Court which is based upon groper appreciation of evidence available on the record and is in accordance with the principles of appreciation of evidence set down by Hon'ble Supreme Court of Pakistan in this regard. The appellant had committed the gory murder of a young lad in a very brutal and gruesome manner and after cutting his penis made him a symbol of horror and humiliation. Considering the age of the appellant the learned trial Court had already taken a lenient view in passing sentence against him.
I, therefore, uphold the conviction and sentence passed against the appellant, resultantly, this criminal appeal filed by the appellant is dismissed.
16. In view of any discussion made in preceding paragraph Criminal Revision No.75 of 2009 filed by Arshad Mahmood complainant for enhancing the sentence of life imprisonment to capital punishment of death is also dismissed.