' ROOH-UL-AMIN KHAN, J.---Noor Shah Gul complainant (appellant herein), by way of the instant appeal has challenged the legality and propriety of judgment/order dated 17-8-2006, handed down by the learned Judge Juvenile Court, Karak whereby Asim Ullah accused (respondent herein) has been acquitted from the charge in case F.I.R. No, 92 dated 20-11-2005, registered under sections 302/377 P.P.C. At Police Station Khurram District Karak.
2. The prosecution case is that one Basit, who was the student of class 6th studying in Dan Public School Khurram, on 12-11-2005, after returning home from his school at 2 or 2.30 hours, was sent by inmates of his house for purchase of house commodities from a shop in Khurram Bazaar, but he did not return home, till evening. He was searched in the houses of his relatives, but to no avail, so his grandfather Noor Shah Gul approached Police Station Khurram and lodged report about his missing where he narrated the above story. He did not charge any body in his report for abduction or kidnapping of his grandson. On 14-11-2005 at 0900 hours, S.H.O. Police Station Khurram, along with other police officials was on his way to the Court of Judicial Magistrate to get permission of inquiry under section 156(3), Cr.P.C. In the matter, but when reached near the house of Noor Shah Gul, the S.H.O. Was informed by said Noor Shah Gul, that dead body of his grandson has been recovered from a pond situated in the nearby fields. The dead body of the deceased was examined by the S.H.O. But he did not apparently observe any bruises or violence marks over the same. The injury sheet and inquest report of the deceased were prepared and his dead body was referred to the mortuary for autopsy to determine the cause of death. Inquiry under section 174, Cr.P.C. Was initiated, during which one Asim Ullah respondent son of Muhammad Usman was interrogated. During the course of interrogation, he disclosed the factum of murder of the deceased by him in a pond and also disclosed about concealment of shoes "Chappal" of the deceased in residential room of his house. On 20-11-2005, Noor Shah Gul, grandfather of the deceased submitted written application wherein he charged respondent Asim Ullah for committing the murder of his grandson. In the application he has alleged that on 12-11-2005 he had reported about missing of his grandson, who was searched and on 14-11-2005, his dead body was found in a pond; that on 12-11-2005 he for the purpose of looking after his field near his house, was present there when his grandson came out of the house and he (Noor Shah Gul) asked him as to where he was going, who told about purchase of house commodities from a shop in Khurram Bazaar; that during conversation he noticed Asim Ullah who called his grandson, on which his grandson went towards Asimullah and stand with him; that when till 1930 hours, his grandson did not return, he proceeded to the Police Station and lodged report about his missing in which he did not charge anybody on suspicion but now Asim Ullah has confessed his guilt before the police, hence, he is fully satisfied that Asim Ullah has done to death his grandson. On 21-11-2005, statement of said Noor Shah Gul under section 164 Cr.P.C. Was recorded by the Judicial Magistrate where he reiterated the aforesaid story and stated that the accused has confessed his guilt before the police and has narrated the entire episode of murder of his grandson so he is fully satisfied about murder of his grandson by the accused.
3. During investigation of the case, the Investigating Officer prepared site plan Exh. PB on the pointation of complainant Noor Shah Gul. Another site plan Exh.PB/1 was prepared at the pointation of the accused. On 22-11-2005 the accused was produced before the Illaqa Judicial Magistrate for recording his confessional statement. Vide recovery memo Exh.P.W.9/5,the I.O. Took into possession the last worn clothes of the deceased. He also prepared pointation memo Exh.PC vide which a pair of shoes "Chappal" of the deceased were taken into possession on the pointation of the accused.
The spot was also verified from the accused and to this effect pointation memo Exh.P.W.5/1 was prepared. Identification parade of the Chappal was conducted through mother of the deceased.
On completion of investigation, the respondent being a juvenile was forwarded, to the Juvenile Court for trial, where he was formally charged to which he pleaded not guilty and claimed trial. The prosecution examined fourteen witnesses. After closure of the prosecution evidence, statement of the accused was recorded under section 342, Cr.P.C. Wherein he denied the prosecution allegations and professed his innocence. He also retracted from his confessional statement. He, however, neither wished to be examined on oath nor opted to produce evidence in defence. On conclusion of trial, the learned trial Court after hearing both the sides, acquitted the respondent- accused, hence, this appeal.
4. We have heard the exhaustive arguments of the learned counsel for the parties and have gone through the record with their valuable assistance.
5. Record transpires that no one has come forward to furnish ocular account of this unfortunate incident. Thus, one may say that it is an unseen occurrence. The material collected by the prosecution against the respondent are:--
(i) The last seen evidence furnished by Noor Shah Gul grandfather of the deceased as well as complainant of the instant case.
(ii) Confessional statement of the respondent
(iii) Identification parade of the shoes "Chappal" of the deceased allegedly recovered on the pointation of the accused, and
(iv) Circumstantial evidence in the shape of recovery of last worn clothes of the deceased, coupled with his autopsy report and report of the FSL.
6. Before going to dilate upon the above referred circumstantial evidence, we are fully conscious of the principle that if the case is based on circumstantial evidence, the prosecution must ensure, that the circumstances from which the inference of guilt is sought to be drawn, must be cogently and firmly established. The circumstances must be unerringly point towards the guilt of the accused and when taken cumulatively, should form a chain so complete that it must demonstrate in all probabilities that the crime was committed by the accused. It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be A drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused.
Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for conclusion consistent with the innocence of the accused and it must be such to show that within all human probability the act must have been done by the accused. In case titled, "Sheikh Muhammad Amjad v. State"
(PLD 2003 SC 704), the august Supreme Court while dealing with circumstantial evidence, has been held that:-- "According to the standard of proof required to convict a person on circumstantial evidence, the circumstances relied upon in support of, the conviction must be fully established and the chain of evidence furnished by those circumstances must be so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. The circumstances from which the conclusion of the guilt is to be drawn have not only to be fully established but also that all the circumstances so established should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused and should not be capable of being explained by any other hypothesis, except the guilt of the accused and when all the circumstances cumulatively taken together should lead to the only irresistible conclusion that the accused alone is the perpetrator of the crime."
7. First of all, we would take the last seen evidence furnished by Noor Shah Gul, the grandfather of the minor boy. He recorded his statement as (P.W.13). The first report which this P.W.Made before the police regarding missing of his deceased grandson was incorporated in Daily Diary No,12 dated 12-11-2005, in which he has not disclosed about the factum of meeting of his grandson with accused Asimullah in his presence when he was present outside his house for looking after his fields and the deceased came out from the house, rather he has narrated the events that after return of his grandson from his school and thereafter sending him to Khurram Bazaar, he did not return home till evening, so his report be registered in this respect. Till the recovery of dead body of his grandson, P.W.13 Noor Shah Gul never disclosed the factum of his presence in the field, coming out of his grandson from the house, inquiring from him about his visit and presence of accused Asimullah and calling his grandson. It was after the arrest of the accused during inquiry under section 174, Cr.P.C. When he confessed before the police, the complainant on 20-11-2005, came forward and improved his statement and disclosed the factum of last seeing the deceased in the company of accused, who was standing along the road and called him (the deceased), on which the deceased went towards him, shake hand with the accused and that he (Noor Shah Gul) thought that both are meeting in connection with their school affairs. This version of the complainant to establish his status as witness of the last evidence is afterthought and seems to be a cooked and fabricated story. Had he seen the accused Asimullah on the very first day of his missing, he would have definitely disclosed before the police in his report regarding missing of his grandson that he was lastly seen with one Asimullah and he would have also inquired from said Asimullah about whereabouts of his grandson, but not a single word in this regard could be found in his very first report. Admittedly, the last seen evidence is a weakest type of evidence unless corroborated by other strong pieces of evidence. It is difficult to award punishment on capital charge, only on the basis of evidence of last seen. The statement of the complainant does not find any support from the alleged confessional statement of the accused. The accused has not stated a single word in his confessional statement to fortify the story narrated by the complainant. Thus, this belated story of the complainant regarding last seen of the deceased in the company of the accused, is unbelievable and untrustworthy. Complainant, being not an eye-witness of the occurrence, his evidence is of no use to prosecution. Moreover, he has charged none in the first report but had charged the accused on 21-11-2005, in his statement recorded under S.164, Cr.P.C.
After about 9 days of the occurrence. According to card of arrest, accused Asim was got busted by the local police on 20-11-2005, which suggests that till the arrest of the accused, the complainant had charged no body for murder of his grandson. His statement under section 164, Cr.P.C. In written form lead us to the conclusion that infact he has never seen the deceased in company of the accused-respondent and the story of last seen has been developed after arrest of the accused by the local police. Moreso, for the belated statement he has neither furnished any plausible explanation nor has disclosed the source of his satisfaction. Such belated statement without plausible explanation and in the absence of disclosure of source of satisfaction would lose its evidentiary value and same cannot be relied upon. As discussed above, it is an admitted fact that the complainant report about missing of his grandson (deceased) on 12-11-2005. The corpus of the deceased was found in a pond near the village Abadi on 14-11-2005, i,e, almost after two days of the report. We have discussed in the preceding Paragraphs that at the time of initial report about missing of the deceased, the complainant has not disclosed the fact of last seen of the deceased in the company of accused and even the time of death is unknown. The theory of last seen comes into play where the time gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead, is so small that possibility of any person other than the accused, being the author of the crime becomes impossible. It would be difficult in case to positively established that the deceased was last seen with the accused, when there is long gap and possibility of other persons coming in between exists. In absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to conclusion of guilt in those case. In case in hand, the time of death of the deceased is unknown, thus, it could not be ascertained that the accused and the deceased remained together till death/murder of the deceased.
8. As regard confessional statement of the accused, on one hand, it has been recorded on 22-11- 2005, after 4 days of physical remand of accused, he too like the deceased is a juvenile, hence, the element of torture and threat during his physical remand on the part of the police cannot be excluded from the consideration, while on the other, the same has been retracted by him. In reply to a question in his statement under section 342, Cr.P.C. That what would he say about his confessional statement recorded on 22-11-2005 by learned Judicial Magistrate Banda Daud Shah?
He answered in the following words:-- "I had not made any confession. I am literate and use to sign and the confessional statement does not bear my signature. Moreover, the confessional statement is the result of police manipulation and is not according to the true spirit of existing law".
Retracted confession cannot be based a ground for conviction of the accused person unless the same is corroborated by strong corroborative pieces of evidence. The confessional statement of the accused does not find support from the medical evidence which runs quite contrary with the confessional statement of the accused. According to autopsy report of H the deceased the Medical Officer did not observe any ligature mark, or any other pressure mark on or around the neck, no sign of violence anywhere on the body. No staining anywhere, Small amount of fluid almost clear and coming out from the mouth and no stain laceration or bleeding noted. In remarks the doctor has given opinion that the cause of death was less likely to be drowning. No sign of violence on the body and no other clue for cause of death was detected from internal and external examination of the dead body of the deceased. The confessional statement of the accused even if taken into consideration the same also does not find any corroboration from the FSL report regarding anal swa b taken from the deceased, report of which is positive which shows that sodomy had been committed with the deceased, but the accused in his confessional statement has not uttered a single word about sodomy with the deceased. Rather, if one goes through the confessional statement the same seems to be a manipulated and concocted. It has been recorded by the Magistrate in Urdu, however, the same is translated in English and reproduced below:-- "It was Saturday at 245 hours I pushed Abdul Basit in a pond and thereafter I also jumped behind him into the water, pressed his throat/neck with my hands, put pressure on his chest and kept him for 15 minutes inside the water and when I fully satisfied about his death, I came out from the water and it was 3-00 P.M. The deceased has refused meeting me, which makes me furious".
The story furnished by the accused in his confessional statement does not appeal to a prudent mind because the accused has not stated the events I how he met with the deceased, where from he brought him to the pond. Besides that, the deceased and the accused were probably of the same age at the time of incident. Both were juvenile. The deceased was not a statue or static instrument to easily keep by the accused inside the water for 15 minutes. The accused has not stated anything of the sort that he first inflicted serious injury on the deceased and then pushed him in the pond. In this situation one could expect that the deceased after receiving sever injury might have lost his senses and power and the accused was able to press and keep him inside the water for 15 minutes. The deceased was a student of 6th class and of the age of 11/12 years with good health as evident from his postmortem report. To release/rescue himself from the clutches of the accused, the resistance and efforts on the part of the deceased is natural and in this way bruises on his person or on the person of the accused cannot be denied because keeping the human nature one would not so easily allow the other to take his life, but the situation is quite opposite here because neither any bruises have been observed on the dead body of the deceased nor on the person of the accused. This fact cannot be denied that the hands and other parts of the body, of a human body in sensing a danger, automatically try to rescue the body without following the mind. For example, if one falls, his hands automatically move in front to rescue the face and head. Similar is the case of attack in altercation. If one person attack another, his hands automatically try to grip the hands and defend the attack of the opposite one. But in the instant case, the deceased has been shown to have been done to death in such a way that he was even dead before his death or was a statue or static instrument without inhalation, which is not appealable to a prudent mind. Even if we accept the confessional statement for the sake of arguments, even then the same does not appeal to reason because pressing the throat for 15 minutes, the medical Officer should have observed marks on the neck/throat of the deceased but he did not. Similar is the position of the S.H.O., who examined the dead body of the deceased prior to his autopsy and he also did not observe any marks on the body of the deceased. In absence of any injury, and that too, of such a nature to decrease the resisting energy of the deceased, keeping the deceased inside the water for 15 minutes does not appeal to a prudent sense. Apart from above, the Magistrate who had recorded the alleged confessional statement of accused had totally/completely failed to observe and fulfil requisite formalities which are sine qua non for recording confessional statement of accused. The Magistrate has been examined as P.W.14. In his cross-examination he admitted that the statement was not recorded on oath. He further admitted that he has not mentioned the age of the accused in his statement and other requisite documents Exh.P.W.14/1 and Exh.P.W.14/3. He even does not remember as to whether the accused was produced before him in handcuffs at the time of recording his statement. He stated that he had not asked about educational qualification of the accused. He does not remember the production of the accused before him for the first time and that whether at that time he was willing for recording his confessional statement or not. He deposed that this fact relates to record, however, he recorded the statement after expiry of physical remand of the accused. On one hand the accused has totally resiled from the confessional statement, while on the other, the same has not been recorded by properly observing all the legal formalities required under the law. In these circumstances, the confessional statement retracted by the accused, cannot not at all be called as voluntary judicial confession in the eye of law; and same is having no legal effect. For judging evidentiary value of a retracted confession it has to be seen whether the same appeared to be voluntary, without any inducement, promise, duress or coercion, and whether the same appeared to be true and voluntary? Where retracted K judicial confession appears to be voluntary and true, it is supposed to be the best evidence against the maker (i,e, accused) and can be made sole basis for conviction, without looking for corroboration, but position in the instant case is squarely different. The retracted confession of the accused is neither corroborated by any circumstantial evidence nor by the medical evidence, hence, cannot be relied upon. In case titled, "The State v.
Shah Jehan" (PLD 2003 Supreme Court 70), the honourable Supreme Court maintained the acquittal findings of the High Court on the basis of retracted judicial confession of accused which was not in conformity with the ocular evidence with regard to the time and circumstances of the occurrence and it was also not in consonance with medical and was not corroborated by material particulars.
9. The accused has not stated a single word about the shoes of the deceased in his confessional statement that after committing his murder,he then concealed his shoes in a residential room of his house nor he has stated anything about commission of sodomy with the deceased.
Shoes/Chappal of the deceased has been shown recovered on the pointation of the accused from his house inside a room. The factum of arrest of the accused on 19-11-2005, before registration of the F.I.R, is manifest from the statement of Said Khan S.H.O. (P.W.9) but the accused has been shown arrested on 20-11-2005 as per his arrest card. If the accused was arrested on 19-11-2005 and even the shoes of the deceased had been recovered on his pointation on the same day then the recovery of the dead body from the pond on 14-11-2005, is quite disturbing factor which totally negates the prosecution case and creates serious doubt. Amal Khan ASI was examined as P.W.10, who is marginal witness to recovery memo Exh,PC, vide which shoes/chappal of the deceased has been taken into possession. He admitted in his cross-examination that aforementioned recovery memo regarding the Chappal was prepared before the registration of the case, whereas recovery memo Exh.PC bears the date as 20-11-2005 as well as the F.I.R number, which vividly suggests preliminary inquiry in the case before registration of the F.I.R. Another witness of the same recovery memo Exh.PC is Mir Dali Khan, who has furnished a different version as compared to Amal Khan ASI.
According to Mir Dali Khan, on 20-11-2005 he was present in his house when at about 10.30 hours police came and asked him to accompany them to the house of the accused. He accompanied them in a vehicle while accused was sitting in another vehicle. When they reached the house, the police called the inmates to inform them about their visit and told them that the house search is going to be conducted by them. Thereafter, the accused along with police entered in the house.
The accused was in handcuff, who went inside the room with the police officials while P.W.3 remained in the courtyard with other police. After some time the accused returned with a pair of chappal in his hand wrapped in a plastic bag which the I.O. Took into his possession vide recovery memo Exh.PC. This means that the Chappal has not been recovered in presence of this P.W.Rather he was in the Courtyard and when the accused came out in company of the police from the room, he was having chappal. The statements of both the aforesaid witnesses coupled with the proceedings conducted by the I.O. Makes the recovery doubtful.
10. As regard identification parade of the shoes/Chappal, the same is also in violation of the law. Ali Muhammad Tehsildar Banda Daud Shah, who conducted the identification parade, has been examined as P.W.6. According to him on 22-11-2005, an application was marked to him by the Judicial Magistrate for conducting identification parade of shoes/Chappal of the deceased Abdul Basit. On 24-11-2005 at about 11 a.m. The police produced Chappal of the deceased before him in sealed parcel along with 7 other pairs of Chappal of different size and colours. He de-sealed the parcel of the Chappel of the deceased and mixed it with other Chappal. Then Razia Sultana, mother of the deceased was called for the identification of chappal of her deceased son and she identified the Chappal and this process of identification was repeated thrice. In his cross- examination P.W.6 admitted it correct that he did not put in the identification parade, same colour and sizes of chappal like the one allegedly recovered on the pointation of the accused. He admitted that the entire proceedings of the identification parade were carried out in the presence of police in side the Court. The statement of Yousaf ASI, who participated in the identification proceeding is quite awesome. This case relates to murder in the water while he has also deposed about recovery of certain empties of 7.62 bore from the place of the accused and 4 spent bullet from the spot. According to his statement recorded as P.W.11 he is marginal witness to recovery memo Exh.PC/1 vide which the I.O. Took into his possession one Qameez and one Shalwar having corresponding cut marks sent by the doctor through constable Abidullah. Similarly, he is also marginal witness to recovery memo Exh.PC vide which the I.O. Took into his possession blood stained earth, 13 empties of 7.62 bore from the place of the accused and 4 spent bullet from the spot. Both the memos are stated to be correct and correctly bear his signatures. He further deposed that he was also present in the identification parade of the recovered chappal of the deceased in the Court of Tehsildar Banda wherein the mother of deceased had correctly identified the Chappal of her deceased son. Statement of this witness on one hand shows the efficiency and fairness of the prosecution that how they deal with the cases blindly, while on the other, is a stigma on the face of the Investigating Agency, anyhow, according to cross-examination of this witness, he also admitted the colours of the Chappal used in the identification parade to be different. He deposed that he had come to the Court of Tehsildar along with ASI KBI and mother of the deceased was also accompanying them. Mst. Razia Sultan, mother of the deceased appeared as P.W.7. She has totally negated the version of PW.11. In her cross-examination she denied her visit to the Court of Tehsildar along with police. Thus, the identification parade conducted in the case is not in accordance with law and the alleged recovered Chappal cannot be used as evidence against the accused. Otherwise, the Chappal of the deceased has allegedly been recovered from a room of a dwelling house, exclusively in possession of married brother of the accused. It is well settled law that where the incriminating articles were recovered from a house not in exclusive possession of the accused, mere recovery p of the some article in circumstances, is not conclusive proof of accused's participation in the murder.
11. So far as medical evidence in the shape of autopsy report of the deceased is concerned. As stated earlier none has witnessed the incident. There is no allegation of sodomy with the deceased.
Even the accused in his retracted confessional statement has not disclosed the factum of committing sodomy with the deceased. Whereas, the swabs taken from the deceased and sent to the FSL, have been found stained with semen which seems strange in absence of any observation by the medical Officer who conducted autopsy on the dead body of the- deceased. According to his report, no ligature mark, no other pressure mark on or around the neck, no sign of violence anywhere on the body. No staining anywhere, Small amount of fluid almost clear and coming out from the mouth and no stain laceration or bleeding noted. In remarks he has given opinion that the cause of death was less likely to be drowning. No sign of violence on the body and no other clue for cause of death were detected from internal and external examination. Moreover, detection of semen on the swa b despite the factum of remaining the dead body of the deceased in the water for two days also does not appeal to a prudent mind.
12. Finally, we might stress, even at the risk of repetition, that the genesis and origin of the present occurrence appears to be shrouded in deep mystery. Thus, in view of the inherent improbabilities, serious omissions and infirmities as well as other circumstances, pointed by us, we are of the firm view that, the prosecution has failed to prove the guilt of the accused through cogent, coherent and confidence inspiring evidence of unimpeachable character. Rather the prosecution evidence is shaky and scanty and full of doubts which cannot be made basis for conviction. It is cardinal principle of administration of criminal justice that prosecution is bound to prove its case beyond any shadow of doubt. If any reasonable doubt arises in the prosecution case, the benefit of the same must be extended to the accused not as a grace or concession, but as a matter of right.
Likewise, it is also well embedded principle of criminal justice that there is no need of so many doubts in the prosecution case, rather any reasonable doubt arising out of the prosecution evidence, pricking the judicious mind is sufficient for acquittal of the accused. Basically, it is the principle enshrined in Islamic jurisprudence, fourteen hundred years ago that "it would be better to acquit hundred culprits than convicting one innocent soul." Which has now been transformed into the form of the principle that, "acquitting by error would be better than convicting by error". The said commandment has evolved into the theory of benefit of doubt, which, invariably, is extended to the accused for safe administration of criminal justice. At the same time we are conscious that a grave and heinous crime has been committed in a brutal manner, but when there is no satisfactory proof of the guilt of accused, we have no other option but to give him the benefit of doubt and we are constrained to do so in this case.
13. It is also a settled law that after earning the acquittal from the trial Court, double presumption of innocence is acquired by an accused. While Court sitting in appeal against acquittal must be slow in reversing the judgment of acquittal, unless it is found to be arbitrary fanciful and capricious on the face of it or is the result of bare misreading or non-reading of any material evidence. In the instant case, no such infirmity has been found in the impugned judgment. The learned trial Court has rightly acquitted the respondent/accused by extending him benefit of doubt, after proper appraisal of evidence for which no exception can be taken.
14. Resultantly, this appeal being without substances stands dismissed.