' MALIK SHAHZAD AHMAD KHAN, J.---Muhammad Rasib alias Babu appellant was tried in case FIR No,257 dated 26.07.2008, registered at Police Station Murree, District Rawalpindi in respect of offences under section 302/34, P.P.C. (section 364, P.P.C. Added in the charge). After conclusion of the trial, the learned trial Court vide its judgment-dated 28.04.2010 has convicted and sentenced the appellant as under:- Muhammad Rasib alias Babu ' Under section 302(b), P. P.C. To 'Death' sentence for committing Qatl-i-amd of Aqeel Ahmad deceased. He was also ordered to pay Rs,2,00,000/- (rupees two hundred thousand only) as compensation under section 544-A of Cr.P.C., and in default thereof to suffer simple imprisonment for six months.
' Under section 364, P.P.C. To undergo rigorous imprisonment for ten years along with fine of Rs,50,000/-, or in default of the payment of fine, to further undergo SI for six months.
2. Feeling aggrieved, the appellant has challenged his convictions and sentences through Criminal Appeal No,351 of 2010, whereas, the learned trial Court has transmitted Murder Reference No,52/Rwp of 2010 for confirmation or otherwise of the Death sentence of Muhammad Rasib alias Babu appellant. We propose to dispose of both these matters by this single judgment as these have arisen out of the same judgment dated 28.04.2010 passed by the learned Additional Sessions Judge, Rawalpindi.
3. Brief facts of the case as given by the complainant, namely, Mst. Rukhsana Bibi (PW4) in her written application (Exh.PB) on the basis of which the formal FIR (Ex.PB/1) was chalked out, are that on 24.07.2008, at about 4.00 p.m. (evening), the complainant's son Aqeel Ahmad (deceased), who was 16/17 years old along with his younger brother Khurram Shahzad went in the ground of Government High School Ban to play cricket. Aqeel Ahmad (deceased) didn't return in the evening.
The complainant Mst. Rukhsana Bibi (P.W.4) inquired from Khurram Shahzad about Aged Ahmad (deceased). Khurram Shahzad told .The complainant Mst. Rukhsana Bibi (P.W.4) that during the game, the appellant Muhammad Rasib alias Babu along with Muhammad Idrees alias Billa (since PO) carne in'the ground and took Aqeel Ahmad (deceased) along with them. Nasir (P.W.3) and Javed (P.W.5) also went behind the appellant and the deceased towards the office of Forest Department. Muhammad Rasib alias Babu (appellant) told to Nasir (P.W.3) and Javed (P.W.5) that they had some personal work with Aqeel Ahmad and that they (PWs) should go back, upon which the said witnesses came back and started playing. The complainant Mst. Rukhsana Bibi (P.W.4) asked from Nasir (P.W.3) and Javed (P.W.5) about her son Aqeel Ahmad (deceased) and they also verified the statement of Khurram Shahzad. The complainant Mst. Rukhsana Bibi (P.W.4) along with the members of her baradree searched for Aqeel Ahmad (deceased) and on 26.07.2008, at about 10.00 a.m., all the persons of baradree of the complainant went in the jungle, situated along the side of the office of Forest Department and during search, the complainant Mst. Rukhsana Bibi (P.W.4) came to know through P.W Khizar Hayat (since given up) and Muhammad Ikhlaq (P.W.1), who were relatives of the complainant that dead body of Aqeel Ahmad (deceased) was lying in the jungle. The complainant further alleged that the appellant and Muhammad Idrees alias Billa co-accused (since PO) had committed the murder of her son in the forest, for the purpose of committing sodomy with him.
4. The appellant namely Muhammad Rasib alias Babu was arrested on 28.07.2008 by Nazeer Ahmad, SI (PW14). According to the prosecution case, on 04.08.2008, the appellant Muhammad Rasib alias Babu after making disclosure, led to .The recovery of pistol (P-2), which was taken into possession through memo Exh. PH. After completion of investigation, the challan was prepared and submitted before the court. The learned trial court, after observing legal formalities, as provided under the Code of Criminal Procedure, 1898 framed charge against the appellant on 05.03.2009 under sections 302, 364, 34, P.P.C., to which he pleaded not guilty and claimed trial.
5. In order to prove its case, the prosecution produced 15 witnesses, during the trial. Mst. Rukhsana Bibi (PW4) is the complainant of the case. Tariq Mehmood (PW2) is the witness through whom the circumstantial evidence has been produced, Javed Iqbal (PW5) is the witness of last seen, whereas, Nasir Mehmood (PW3) who was though the witness of last-seen but he was declared hostile.
' The medical evidence was furnished by Dr. Waheed Afsar Bajwa (PW7).
' Muhammad Zareef 2286/C (PW9) is the witness of the recovery of pistol P-2, which was recovered on the pointation of the appellant through memo Exh. PH. Nazeer Ahmad, SI (PW14) is the Investigating Officer of the case.
' Muhammad Ikhlaq (PW1), Shafiqur-Rehman (PW6), Muhammad Zamir C/2016 (PW8), Nasir Mehmood C/7850 (PW10), Saeed Mehmood, ASI/Moharrar (PW.11), Tariq Mehmood, SI (PW12), Muhammad Waseem-ul-Haq 7746/C (PW13) And Mukhtar Ali, 335/C (PW15) are the formal witnesses.
' The prosecution produced documentary evidence in the shape of receipt of deadbody Exh. PA, application of Mst. Rukhsana Bibi (PW4) to SHO Police Station Murree for registration of FIR Exh. PB, FIR Exh.PB/1, post-mortem report of the deceased Exh.PC and pictorial diagrams Exh.PC/1 and Exh.PC/2, Inquest report of Aqeel Ahmad deceased Exh.PD, application for conducting post-mortem examination on the deadbody of deceased Exh. PE, Medico-legal Report of Muhammad Rasib alias Babu appellant Exh.PF, memo of possession of two live rounds of .30 bore Exh. PG, memo of possession of pistol .30 bore P-2 recovered on the pointation of the appellant Exh.PH, memo of possession of blood stained earth Exh.PJ, memo of possession of empty round of .30 bore Exh.PK, memo of possession of last worn clothes of the deceased Exh.PL, rough site plan of the place of occurrence Exh.PM, rough site plan of the place of recovery of .30 bore pistol Exh.PN, warrant of arrest of Muhammad Idrees co-accused (since PO) and report on over leaf Exh.PO, proclamation under section 87, Cr.P.C. Against Muhammad Idrees and report on over leaf Exh.PQ, scaled site plan of the place of occurrence Exh.PR, report of Chemical Examiner in respect of earth Exh.PS, Serologist report Exh.PT, report of Chemical Examiner qua anal swabs Exh.P11 and closed its evidence.
6. The statement of the appellant under section 342 of Cr.P.C. Was recorded. He refuted the allegations levelled against him and professed his innocence. While answering to a question that "Why this case against you and why the PWs have deposed against you" the appellant replied as under:- ' "I am innocent. I have had nothing with this occurrence. In fact the complainant party has suspicion that I have illicit relation with the mother of deceased, so due to this suspicion, I am falsely implicated in this case. In fact I had no concern with the mother of deceased Aqeel. It was a blind r ,order and I was implicated due to above mentioned grudge in this false case. All the private PWs malafidely deposed falsely against me and with the collusion of complainant party or the police officials all made false statement against me. Moreover, fake recovery of .30 bore pistol was planted upon me. In fact no recovery has been effected from me. I am innocent".
' The appellant opted not to make statement on oath as envisaged under section 340(2), Cr.P.C.
Nor produced any evidence in his defence.
' The learned trial Court vide its judgment dated 28.04.2010 convicted and sentenced the appellant as mentioned and detailed above.
7. Learned counsel for the appellant, in support of this appeal, contends that it is a case of circumstantial evidence which is always considered to be a weak type of evidence; that the circumstantial evidence produced by the prosecution is not worthy of reliance; that there is delay of two days in reporting the matter to the police and no plausible explanation has been given by the prosecution for the said delay; that the evidence of prosecution witness of last seen is highly doubtful; that there is no motive with the appellant to commit the murder of Aqeel Ahmad deceased and the motive alleged by the prosecution that the deceased was murdered after committing sodomy is not supported by the medical evidence because no injury was noted by the doctor on the anal area of the deceased; that the report of Chemical Examiner, in absence of semen grouping test is also not worthy of reliance; that although it has been alleged that pistol P-2 was recovered from the possession of the appellant but no Forensic Science Laboratory report has been produced in evidence by the prosecution, therefore, no reliance can be placed on the said recovery; that prosecution failed to prove its case against-the appellant beyond the shadow -of doubt, therefore, this appeal be accepted and the appellant may be acquitted from the charge.
8. Conversely, learned Additional Prosecutor-General, -for the State, assisted by, learned counsel for the complainant opposes this appeal on the grounds that prosecution has produced a very strong circumstantial evidence against the appellant; that the appellant could not establish any mala fide on the part of the complainant for his false involvement in the instant case; that the delay in reporting the matter to the police in the instant case is not fatal to the prosecution case because the said delay has been explained by the complainant in the FIR wherein she stated that she along with her other family members was trying to trace out the deceased; that the complainant Mst. Rukhsana Bibi (PW4) while appearing before the Court has also stated that on the following day of occurrence she orally reported the matter at Police Post Ghularan Gali and as such the delay in lodging the FIR has been explained by the prosecution; that the medical evidence has further supported the prosecution case, according to which, the deceased was murdered with the help of firearm; that the motive of sodomy as alleged by the prosecution has also been proved in this case and according to the report of Chemical Examiner Exh.PU, swabs taken from the anal area of the deceased were found to be stained with semens; that the evidence of last-seen furnished by Javed Iqbal (PW5) is confidence inspiring and trustworthy and despite lengthy cross- examination the evidence of said witness could not be shaken; that the pistol was also recovered from the possession of the appellant which further corroborates the prosecution case; that the sentence of death was rightly awarded to the appellant and the same may be maintained, appeal may be dismissed and Murder Reference be answered in the affirmative.
9. We have heard the arguments of learned counsel for the parties and have also gone through the evidence available on the record with their able assistance.
10. Since there is no direct evidence and prosecution case hinges on the circumstantial evidence, therefore, utmost care and caution is required for reaching at a just decision of the case. It is settled by now that in such like cases every circumstance shOuld be linked with each other and it should form such a continuous chain that its one end touches the dead body and other to the neck of the accused. But if any link in the chain is missing then its benefit must go to the accused. In this regard, guidance has been sought from the judgments of the Apex Court of the country reported as 'Ch. Barkat Ali v. Major Karam Elahi Zia and another' (1992 SCM R 1047), 'Sarfraz Khan v. The State'
(1996 SCM R 188) and 'Asadullah and another v. The State' (1999 SCM R 1034). In the case of Ch. Barkat Ali (supra), the august Supreme Court of Pakistan, at page 1055, observed as under:- ' '...Law relating to circumstantial evidence that proved circumstances must be incompatible with any reasonable hypothesis of the innocence of the accused. See 'Siraj v. The Crown' (PLD 1956 FC 123). In a case of circumstantial evidence, the rule is that no link in the chain should be broken and that the circumstances should be such as cannot be explained away on any hypothesis other than the guilt of the accused.'
' In the case of Sarfraz Khan (supra), the august Supreme Court of Pakistan, at page 192, held as under:- `....It is well settled that circumstantial evidence should be so inter-connected that it forms such a continuous chain that its one end touches the dead body and other neck of the accused thereby, excluding all the hypothesis of his innocence.'
' Further reliance in this context is placed on the case of `Altaf Hussain v. Fakhar Hussain and another' (2008 SCM R 1103) wherein, at page 1105 it was held by the Hon'ble Supreme Court as under:- 7....Needless to emphasis that all the pieces of evidence should be so, linked that it should give the picture of a complete chain, one corner of which should touch the neck of the deceased and other corner to the neck of the accused. Failure of one link will destroy the entire chain.'
' Keeping in view the parameters, laid down in the above-mentioned judgments, we will discuss each part, of`the prosecution evidence, separately.
11. The prosecution case is based on the following pieces of evidence:-
(i) Last seen evidence.
(ii) Circumstantial evidence produced by Tariq Mehmood (PW2).
(iii) Recovery of pistol from the appellant.
(iv) Motive.
(v) Medical evidence. .
(i) Last seen evidence.
12. We have noted that there is delay of two days in reporting the matter to the police. The exact time when Aqeel Ahmad deceased accompanied the appellant and his co-accused Muhammad Idrees alias Billa (since PO) towards the forest has not been mentioned in the FIR. The date of occurrence is mentioned as 24.07.2008, whereas, the matter was reported to the police on 26.07.2008. The witness of last seen evidence namely Javed Iqbal (PW5) has stated during his cross-examination that he told Mst. Rukhsana Bibi complainant (PW4) on 24.07.2008 after Maghrib prayer that he had lastly seen the deceased alive in the company of the appellant and his co- accused but even then the matter was not reported to the police for two days. Although Mst.
Rukhsana Bibi (PW4) has stated in her examination-in-chief that she orally reported the matter of missing of her son Aqeel Ahmad deceased at Police Post Ghularan Gali New Murree on the following morning but no such report has been brought on the record by the B prosecution. It is also noteworthy that according to the 'statement of Shafiq-urRehman (PW6) the deadbody of Aqeel Ahmad deceased was recovered on 26.07.2008 at 10.00 a.m. Even the complainant Mst.
Rukhsana Bibi (PW4) has stated that she reached at the spot/jungle at 10.00/10.30 a.m. On 26.07.2008 but the FIR was lodged in this case on the said day at about 04.10 p.m., i.e, with the delay of about six hours from the recovery of deadbody. The distance between the police station and the place of occurrence is 15 miles. The delay of two days after the occurrence and the delay of about six hours in lodging the FIR after the recovery of deadbody has created a serious doubt about the prosecution case. The Hon'ble Supreme Court of Pakistan while discussing the point of delay in lodging the FIR, in the case of Akhtar Ali and others v. The State (2008 SCMR 06) at page 12 has observed as under:-#TE### ' "It is also an admitted fact that the FIR was lodged by the complainant after considerable delay of 10/11 hours without explaining the said delay. The FIR was also not lodged at Police Station as mentioned above. 10/11 hours delay in lodging of FIR provides sufficient time for deliberation and consultation when complainant had given no explanation for delay in lodging the FIR."
' Similar view was reiterated by the Hon'ble Supreme Court of Pakistan in the case of Nazeer Ahmad v. Gehne Khan and others (2011 SCM R 1473) wherein the delay of seven hours in lodging the FIR was considered to be a ground which adversely reflected on the credibility of prosecution version.
' Similarly in the case of Mehmood Ahmad and 3 others v. The State and another (1995 SCM R 127) the Hon'ble Supreme Court of Pakistan has discarded the prosecution evidence, inter alia, on the ground that there was delay of two hours in lodging the FIR and it was held that the same could be attributed to consultation, taking instructions and calculatedly preparing the report.
As per contents of the FIR there were three witnesses of the prosecution who had lastly seen Aqeel Ahmad deceased alive in the company of the appellant and his co-accused Muhammad Idrees alias Billa (since PO). One of them, Khurram Shahzad is real brother of the deceased but he has not been produced in the witness box by the prosecution, therefore, adverse inference under Article 129(g) of Qanun-e-Shahadat Order, 1984 can be drawn against the prosecution that had the said witness been produced in the witness box his evidence would have been unfavourable to the prosecution case. Apart from the above mentioned witness there were two other witnesses of last seen namely Nasir Mehmood (PW3) and Javed Iqbal (PW5). Nasir Mehmood (PW3) while making his statement before the learned trial court did not support the prosecution case and he was declared hostile.##T## Now we are left with the evidence of only one prosecution witness of last seen namely Javed Iqbal (PW5). He claimed that on the day of occurrence, i.e, on 24.07.2008 he went to the playground of Government High School "Bann" for cricket game where the appellant came and took Aqeel Ahmad deceased to the forest rest house. He further stated that Muhammad Idrees alias Billa (since PO) also reached there and from the forest Rest house, both the above mentioned persons took Aqeel Ahmad deceased to the nearby jungle. The above mentioned Javed Iqbal (PW5) gave a specific reason of his presence at the playground of Government High School "Bann" that he went there to play the cricket game but during his cross-examination he admitted that he did not play cricket on the said day. He further admitted that on the day of occurrence no match was being played except daily game. The relevant part of the statement of Javed lqbal (PW5) during his cross-examination at pages Nos. 30 and. 31 of the paper-book reads as under:- "it was Thursday on 24.07.2008. I do not remember what kind of work was done by me on 24.07.2008 after dawn, nor I can explain how many people friends met me on the said day. On the said day, no match was being played except daily game. 50/60 persons were present into the ground on 24.07.2008. I cannot give the name of players as well spectators.
' "I went to play ground for cricket as well volley ball being player of both games and on 24.07.2008, both the games were being played. On the said day, I did not play any. Game.
' In the above mentioned circumstances we are of the view that although this witness has given a specific reason for his presence at the time of lastly seen the deceased alive in the company of the appellant but his evidence in this respect D is not confidence inspiring. It is not understandable that when on the day of occurrence he went to the playground for cricket game, as well as, volley ball game being player of both the games but at the same time he admitted that he did not play any game on that day. He is related to the deceased but he did not inform the police regarding missing of the deceased for two days. Although he stated that on 24.07.2008 he lastly seen the deceased alive in the company of the appellant and his co-accused who took the deceased to the nearby jungle but Mst. Rukhsana Bibi (PW4) has stated during her cross-examination that she along with her other relative searched for her son Aqeel Ahmad deceased on 25.07.2008 in the said jungle but could not trace him out. The relevant part of the statement of Mst. Rukhsana Bibi (PW4) during her cross-examination at page No, 29 of the paper- book reads as under:- ' We searched my son Aqeel on 25.07.2008 from the said jungle but could not trace out him."
Considering all the aforementioned circumstances we are of the view that the evidence of last seen furnished by the prosecution is not worthy of reliance.
(ii) Circumstantial evidence.
13. The prosecution has also produced circumstantial evidence through Tariq Mehmood (PW2) who simply stated that he was a Taxi driver by profession and on 24.07.2008 he was present at "Bann" bazaar Adda where appellant came and asked him to take him to Rawalpindi because his son was ill who was residing at Rawalpindi. He further stated that he picked the appellant and reached at Karor Arain where public transport was available and the appellant de-boarded from his Taxi on the said point. He further stated that thereafter the complainant of the present case met him and inquired as to whether he dropped the appellant along with Aqeel Ahmad deceased but the said witness replied that he only took and then dropped the appellant. He further stated during his cross-examination that the complainant met him on 24.07.2008 about 07.00/07.30 p.m., therefore, the circumstantial evidence produced by the prosecution through Tariq Mehmood (PW2) is inconsequential. Even otherwise, he did not state that he had seen the appellant in the company of the deceased.
(iii) Recovery of pistol from the appellant.
14. According to the prosecution case one empty was recovered from the place of occurrence vide memo Exh.PK and pistol P-2 was recovered from the possession of the appellant vide memo Exh.PH but the prosecution has not produced in evidence the report of Forensic Science Laboratory. The best evidence to connect the appellant with the crime was withheld. By the prosecution. In absence of matching report of any empty with pistol P-2, the alleged recovery of above mentioned pistol is of no avail to the prosecution.
(iv) Motive.
15. According to the prosecution case the appellant and his co-accused committed the murder of Aqeel Ahmad deceased after committing sodomy with him. We have noted that Dr. Waheed Afsar Bajwa (PW7) conducted post-mortem examination on the deadbody of Aqeel Ahmad deceased.
He has not mentioned any injury in his postmortem report on the anal area of the deceased.
Although he stated that according to the report of Chemical Examiner the swabs of the anal area of the deceased were found to be stained with semens, therefore, sodomy was committed with the deceased but it is noteworthy that it is a case of unseen occurrence, thus, the grouping test of the aforementioned semens was essential in this case for safe administration of justice: In absence of grouping test of the above mentioned semens, the positive report of Chemical Examiner is not helpful to the prosecution case. A reference in this respect may be made to the cases of Abid Javed alias Mithu v. The State (1996 PCr.LJ 1161) and Waqar-ul-Islam and another v. The State (1997 PCr.LJ 1107).
(v) Medical Evidence.
16. Insofar as the medical evidence furnished by the prosecution is concerned it is by now well settled law that medical evidence is a type of supporting evidence, which may confirm the ocular account with regard to receipt of injury, nature of the injury, kind of weapon used in the occurrence but it would not identify the assailant. We may refer here the cases of 'Muhammad Tasaweer v.
Hafiz Zulkarnain and 2 others' (PLD 2009 SC 53). 'Altaf Hussain v. Fakhar Hussain and another' (2008 SCM R 1103) and Mursal Kazmi alias Qamar Shah and another v. The State' (2009 SCM R 1410).
17. We have considered all the aspects of this case and have come to this irresistible conclusion that the prosecution could not prove its case against the appellant beyond the shadow of doubt. It is by now well settled law that if there is a single circumstance which creates doubt regarding the prosecution case, the same is sufficient to give benefit of doubt to the K accused, whereas, the instant case is replete with number of circumstances which have created serious doubt about the prosecution story. In 'Tariq Pervez v. The State' (1995 SCM R 1345), the Hon'ble Supreme Court L of Pakistan, at page 1347, was pleased to observe as under:- `5..................... The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right.'
' The Hon'ble Supreme Court of Pakistan while reiterating the same principle in the case of 'Muhammad Akram v. The. State' (2009 SCM R 230), at page 236, observed as under:- 13................ It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCM R 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."
18. In the light of above discussion, we are of the view that the prosecution has failed to prove its case against the appellant beyond the shadow of doubt, therefore, we accept the Criminal Appeal No,351 of 2010 filed by Muhammad Rasib alias Babu appellant, set aside his convictions and sentences recorded by the learned Additional Sessions Judge .Rawalpindi vide judgment dated 28.04.2010 and acquit him of the charges by extending him the benefit of doubt. Muhammad Rasib alias Babu appellant is in custody, he be released forthwith if not required in any other case.
19. Murder Reference No, 52/Rwp of 2010 is answered in the NEGATIVE and the sentence of death of Muhammad Rasib alias Babu (convict) is NOT CONFIRMED.
20. However, before parting with the judgment, we may observe here that the observations made 'in this judgment shall not influence the learned trial Court during the trial of the absconding accused namely, Muhammad Idrees alias Billa and his case shall be decided on its own merits on the basis of the evidence to be adduced during the trial of the said accused.