Qazi Muhammad Amin Ahmed, J.--Criminal Appeal No, 355-T of 2007 is clubbed with Crl.
Revision- No, 159-T of 2007 that arise out of an incident which occurred on 28.10.2005 at.
4.30 p.m. Within the area of New Shakaryal Mohallah Karim Abad, situated at a distance of 1- Kilometer from Police Station, Sadiqabad, District Rawalpindi. Formal case was registered on 01.11.2005 at 10.30 p.m. Through FIR (Ex.PD/2) recorded by Muhammad Mumtaz ASI (PW-3) on the basis of application (Ex.PD) dated 31.10.2005.
' According to the complainant Abdul Rehman (PW-15) his son Danish Rehman (hereinafter referred to as the deceased) aged about 17 years, a student of second year left home on 28.10.2005 at about 4.30 p.m., after informing him to attend an 'Iftaar party'. He did not return till late whereupon, the complainant attempted to contact him on his cell phone with no success, same day at about 11.00 p.m. Another son of the complainant received a message on his cell phone from Danish Rehman (deceased) that he in the company of some other boys and school teachers are proceeding to Dubai to collect donations for the effectees of Azad Kashmir earthquake. The complainant kept on attempting to roach out his son but with no success. He inquired from his relatives and school boys but remained clueless. On 31.10.2005, at 8.25 a.m. The complainant received a call on his cell phone by one Mansoor who claimed to be a resident of Lahore wherein he informed the complainant that the deceased alongwith the caller and two other boys were kidnapped by some people of Tribal area and in the process deceased sustained an injury on his hand. According to the caller, the kidnappers were shifting them from place to place and were lastly present in Chak Shehzad. This information prompted the complainant to lodge information with the police.
2. According to Nasir Ali (PW-12), a Telephone Operator in Raja Ali & Co., a firm jointly owned by the complainant and one Ali . Akbar, on 11.11.2005 at about 6.50 p.m. He received a telephone call, originating from a public call office by a person who gave his name as Shakoor and inquired about the complainant, as the complainant was not present. The Caller was informed accordingly. On this the caller informed Nasir All (PW-12) that the deceased was in his custody and demanded a huge amount for his release. Again on 12.11.2005 at about 12.52 p.m. Nasir Ali PW in the company of the complainant attended a call from the said caller who demanded Rs, 50,00,000/- for the release of the deceased. Statement of Nasir Ali (PW-12) was recorded by the Investigating Officer (PW-17) on 16.11.2005. Muhammad Shabbir. (PW-10) is a witness of last scene and according to his statement on 28.10.2005, at about 4.15/4.30 p.m., while he was purchasing fruit near Khanna bridge, he saw Arshad appellant on a CD/70 Motorbike who was joined by the deceased shortly thereafter and disclosed to him that, he was accompanying the appellant to attend Iftaari. According to this witness, he left for Karachi on the following day and returned back on 21.11.2005 and learnt about the disappearance of the deceased; a statement was recorded order Section 161, Cr.P.C. On 22.11.2006. PW8 Imran Aslan) is witness of extra judicial confession and according to his deposition on 23.11.205 at about 4.00 p.m. When he was present in his house, the appellant, who according to him was close friend visited him and looked visibly disturbed. Upon inquiry, according to this witness, appellant consented to share his dilemma in lieu of health which was assured by the witness. The appellant, thereafter made a detailed confessional statement covering almost every aspect of the prosecution case. In the nutshell, he admitted to have taken away the deceased to Fatima Jinnah Park F-9, Islamabad with intent to fetch some money from his elders to take revenge of the attitude of Tauseef, elder brother of the deceased; he confessed that he felt desire to commit sodomy with the deceased and administered him some intoxicant through a syrup and then committed sodomy with him. On shouting and protest of the deceased, he wrapped a piece of cloth around the neck of the deceased and strangulated him to death and thereafter threw dead body in a ditch and concealed it by grass subsequently, covered it with earth with the help of the tractor. Abdul Hameed (PW-9) joined Imran Aslam (PW-8) and shared disclosure made by the appellant. According to this witness leaving the appellant home he alongwith Imran Aslam PW went to inform the complainant and found the appellant already left his house.
3. Appellant was arrested on 24.11.2005 and on his body search a mobile phone, a watch (P-4), purse (P-5) containing his ID card P-11, driving license (P-12) and three sims (P-6/1-3), registration book of motorcycle (P-7) were taken into possession vide recovery memo. (Ex.PJ). During the course of investigation, appellant made a disclosure pursuant where to, the accused led to the recovery of sim (P8) which was taken into possession vide recovery memo. (Ex.P.0). The accused also made a disclosure and led to the recovery of semi burnt but identifiable dead body from a ditch. Ch. Abdul Rehman, Ch. Tanvir Hassan and Abdul Ghaffar PWs etc identified the dead body of the deceased. PW-17 also took into possession Sandal (P-9) and Shirt (P-10) vide recover) memo.
(Ex.PQ).
' Medical Officei Dr. Amjad Ali, (PW-5) observed as follows: "It was a dead body of a male which was lying flat on mortuary table. Ground earth and dry gross was on his whole dead body. A white piece of cloth was knotted around his neck which was slightly burnt. His eyes were softened and liquefied. Dead body was putrefied. Foul smell was coming out of dead body. Hair were black and culturally were of a man and were easily detachable. Hair were burnt. No evidence of injury could be ruled out as the soft tissue was lost while all bones were intact. Nails were lost. Bones of hand, feet and both upper limbs were lacking of muscle and were exposed. On dissection there was no fracture of skull. Half of scalp was lacking hair. Brain was shrunked.
' THORAX ' Walls, ribs and cartilages, pleura, larynx and trachea, right lung, left lung, pericardium and heart, blood vessels all were decomposed. Hyoid bone was taken by dissection.
'ABDOMEN.
' Walls, peritoneum, Mouth, pharynx & Osophagus, Diaphragm, were decomposed, stomach was decomposed and was containing diet. Pancreas, small intestine, large intestine, liver, spleen, kidney, bladder were found decomposed on dissection. External Genitalia were lost due to putrefaction.
'OPINION ' After conducting autopsy, Radius bone, hair, specimen of Viscera were sent to Chemical Examiner Punjab, Lahore and Hyoid bone, brain and hert and lungs were sent to Bacteriologist Punjab, Lahore. As soft tissue at that stage, opinion regarding sexual act could not be ruled, out due to advance putrefaction of dead body".
' Medical Officer opined that time between injury and death could not be commented while time between death and post-mortem was estimated 3 to 4 weeks. In his cross-examination, the Medical. Officer admitted that due to decomposition of the dead body he could not find any symptom of sodomy and that it was not clearly identifiable due to advance stage of putrefaction.
According to him, the dead body was almost in the shape of skelton.
' On forensic side report of Histo-Pathologist (Ex.PV) is as follows: "Histological examination of heart sections reveals patent coronaries. The myocardium is autolysed. The lung and brain sections reveal autolyic changes. The hyoid bone section reveal bone entrapped in which are foci of blood haemorrhages. These features are suggestive of ante- mortem injury of the hyoid bone."
4. On 01.12.2005, the appellant was produced before Ahmad Masood Janjua (PW-16) who recorded his confessional statement (Ex.PR). According to this second confessional statement, appellant induced the deceased on 27.10.2005 to visit him on the following day at 10.30 p.m. Near Marriott Hotel to drive a Honda automatic car and fetched him on 28.10.2005 at about 4.00 to 4.30 p.m. And took him into his office and after one hour of Iftaar asked him for sodomy. According to this second statement deceased allowed him, after initial resistance, to have carnal knowledge with him against the order of nature provided he let him drive the car. He did not penetrate his member and ejaculated between the thighs where after deceased asked for the drive whom he informed that there was no car for the purpose which disappointed the deceased who threatened to disclose the incident. According to Ex.PR it was after this threat the deceased administered him intoxicant and in that state took him by tying his leg with the leg of the deceased who felled after covering a short distance. What actuated the appellant to sodomize and murder the deceased, according to his confessional statement was an earlier incident in which brother of the deceased had committed sodomy with him and took his snaps in a cell phone. At the end of his judicial confession appellant is shown to have asserted that he was all alone to commit the crime and sought protection of his family.
' On forensic side, according to the report of Chemical Examiner (Ex.PU) poison was not detected in the visceras sent for chemical examination nor any intoxicant is found in the stomach. Confronted with the charge and prosecution evidence referred to above, the appellant took the following position:- "I am absolutely innocent. I was made scapegoat on the basis of bald and cryptic suspicion. I never abducted Danish Rehman. The witnesses are closely related and cronies of the complainant. Their evidence was concocted at a very belated stage. The so-called extra judicial confession per-se reveals that I was victim of padding and collection of false evidence against me at the behest of the complainant party. I an living my life quite in accordance with injunctive order of Quran and Sunnah. I can never think of committing sodomy and indulging myself in such heinous crime. I was serving Civil Engineer at Islamabad in, the days of occurrence. Even according to the evidence Danish Rehman deceased went elsewhere with his friends and subsequently as per evidence he was abducted by someone else and I was made scapegoat in the instant matter without any tangible evidence and concrete proof. I am absolutely innocent and committed no offence. I am 22 years of age now."
5. Upon conclusion of trial, the learned trial Judge convicted Arshad Mehmood Khan-appellant under Section 302(b)PPC and sentenced him to life imprisonment along with payment of Rs, 500,000/- as compensation under Section 544-A, Cr.P.C. In default thereof, the same is made recoverable as arrears of land revenue as provided in the said provisions of law. The appellant was also convicted under Section 201, PPC and sentenced for a period of three years with fine of Rs, 5000/-, in case of default he shall have to further undergo imprisonment for two months R.I. Both the sentences were ordered to run concurrently. Benefit of Section 382-B, Cr.P.C. Was also extended to him.
6. The learned counsel for the appellant contends that the case of prosecution is hinged upon various pieces of circumstantial evidence which cannot be relied upon to return a guilty verdict on capital charge unless the each link is connected with one another to constitute a chain between the dead body and the appellant, according to the learned counsel such chain does not exist; that the appellant had no earthly reason to make extra judicial confession and then to make a judicial confession and that both the statements contained different details of the occurrence; that evidence of last scene is belatedly recorded and as such does not furnish necessary corroboration; that on prosecution own showing extra judicial confession was made on 23.11.2005 and as such recovery of dead body allegedly at the instance of appellant on 24.11.2005 does not advance prosecution case as according to the prosecution itself, the place of burial was already in the knowledge of the Investigating Officer and other prosecution witnesses. The learned counsel concluded that one weak piece of evidence cannot corroborate another weak piece of evidence; he has prayed for acquittal of the appellant.
7. Conversely, the learned D.P.G assisted by the learned counsel for the complainant argued that there is no earthly reason for the complainant to falsely implicate the appellant in the gruesome murder of his son; that case being one of circumstantial evidence, all available evidence has been brought on the record and even if evidence of extra judicial confession, last scene and initial report (Ex.PD) is excluded from the consideration even then judicial confession of the appellant coupled with recovery of dead body at his instance provides sufficient basis to maintain appellant's conviction.
8. We have heard the learned counsel for the parties and perused the record with their assistance.
The entire edifice of prosecution case is structured upon various pieces of circumstantial evidence.
The story given in Ex.PD refers to voluntarily departure of the deceased from his house and a SMS message to his brother about an intended visit to Dubai. It is complainant's own case that he was contacted on telephone twice by a person who demanded ransom of Rs, 50,00,000/- for the release of his son, a position subsequently abandoned by the prosecution. Insofar as evidence of last scene is concerned, PW-10 Muhammad Shabbir, who saw the deceased last alive in the company of the appellant per chance, admitted that he was resident of a place known as Mohra Amin situated in Tehsil Gujjar Khan, at a distance of about 40-Kilometre from Khanna bridge; his presence at Khanna bridge to purchase fruit at the relevant time is a pursuit which is improbable by all means. His position becomes more dubious on account of his departure to Karachi immediately after his having seen the deceased in the company of appellant on a sojourn for which there is given no explanation. The place where from dead body was recovered, according to the prosecution and advanced stage of putrefaction of the dead body bring evidence of last scene short of proximity in terms of the time and the space which is a sine qua non for acceptance of last scene evidence. Last scene evidence, in itself, is a weak piece of evidence. Coming to the extra judicial confession allegedly made by the appellant before Imran Aslam (PW-8), one finds it hard to understand as to why the appellant would make his breast clean when apparently he was under no compulsion to oblige the prosecution which was clueless about the circumstances leading to the death of the deceased. The alleged extra judicial confession is so detailed and comprehensive that it covers almost every aspect of the prosecution case; it is in fact an encyclopedia of the prosecution case. A man under the stress of compunction of his conscious is not supposed to give such minute details that too on the assurance of help. Another reason to disbelieve extra judicial confession is that a different story is narrated by the appellant in his judicial confession; difference is so irreconcilable that the two statements cannot co-exist. Peacefully, if, extra judicial confession is to be believed then judicial confession is to be excluded from consideration and vice versa.
Judicial confession merits rejection for a variety of reasons, the appellant is not cautioned in writing by the learned Magistrate that he would not be handed over to the Investigating Officer after his confessional statement and instead on the record there is a request by the Investigating Officer for the physical custody of the appellant which, nonetheless, is denied and rightly so by the learned Area Magistrate. Another startling feature of judicial confession is stated position of the appellant that he was all alone in the crime and that his family be spared and provided protection.
This goes a long way to suggest that judicial confession was not voluntary and the appellant was apprehending some threats to his family and in order to ward off that threat he was offering his own prosecution, in this backdrop we cannot hold that judicial confession was voluntarily made free from coercion or inducement. Insofar as recovery of dead body is concerned, it is prosecution's own case that appellant made his breast clean before PWs Imran Aslam and. Abdul Hameed, wherein he furnished information in respect of place of burial without leading to any recovery on the said date. This being so, the appellant cannot be saddled with the consequences of exclusive knowledge about the place of burial. The dead body was not identifiable according to the Medical Officer. It was almost a skelton, a surer method of its identification through DNA test has not been adopted. The decomposed condition of the dead body did not admit the possibility of procuring and forensic proof with regard to charge of sodomy. It is by now well settled that in order to base a conviction on the strength of circumstantial evidence, there must exist a chain comprising of various links, inexorably connected with one another to constitute a nexus between the dead body and the accused by excluding every hypothesis of innocence. Many links are missing in case in hand. It would be unsafe to maintain appellant's conviction on the basis of above referred pieces of evidence, therefore; by extending benefit of doubt we allow Crl. Appeal No, 355 of 2007 and set aside the impugned judgment dated 24.11.2007 passed by the learned Judge, Special Court-II, Anti- Terrorism Rawalpindi and acquit the appellant from the charges; he shall be set at liberty forthwith if not required in any other case.
9. As a necessary corollary of above findings, Crl. Revision No, 159-T of 2009 stands dismissed.