1. RAJA SHAHID MEHMOOD ABBASI, J.---The learned Additional Sessions Judge Rawalpindi, vide judgment dated 15.09.2010 convicted the appellant Raheem Ullah under section 302(b), P.P.C. and sentenced him to death penalty with a direction to pay compensation of Rs.2,00,000/- under section 544-A, Cr.P.C. to the legal heirs of the deceased or in default thereof to further undergo six months R.I. The appellant has filed Cr1. Appeal No.173-J of 2010 against his conviction and sentence whereas the learned trial Court has sent a Reference (M.R.No.143 of 2010) under section 374, Cr.P.C. for the confirmation of death sentence of the appellant or otherwise. Since common question of law and facts involved, therefore, both matters are being disposed of by means of this common judgment.
2. The prosecution case as unfolded in the FIR (Ex.PD/1), registered on the statement (Ex.PD) of complainant, Fazal-eRabi, (PW.11), is that he is a rickshaw driver by profession and on 17.03.2010, he returned home at about 04:00 pm and came to know that his son Suleman Khan aged about four years, was missing since 03:00 pm. He along with others started searching and also made announcement in loudspeaker of Mosque. Meanwhile, Hassan Khan (PW.12) (Mamoon of Suleman) and Mab Shah, told him that they had seen Suleman Khan in the company of Rahim Ullah while giving candies to him from a shop and going into the Baithak, upon which the complainant along with Hassan Khan, Mab Shah and others went to the Baithak of Rahim Ullah at about 12:10 night. The Baithak was locked from outside and the complainant along with Hassan Khan and Mab peeped from the window and saw that his son Suleman was lying in the corner of the Baithak in injured condition and his trouser was put off.
3. After thorough investigation report under section 173, Cr.P.C. was submitted in the Court. The prosecution in order to prove its case examined as many as sixteen witnesses. The ocular account in this case has been furnished by Zahir Khan (PW.10), Fazal-e-Rabi (PW.11) and Hassan Khan (PW.12). Mazhar Hussain S.I./I.O appeared as PW.16 and deposed about the various steps taken by him during the investigation of this case. The autopsy on the dead body of Suleman Khan (deceased) was conducted by Dr. Ghulam Abbas C.M.O. (PW.15) who observed following injuries on the person of the deceased:-- 1.Two bruises marks each measuring 3 x 2 cm approximately on lateral side of neck, resembling that of throat.
2. 2.Multiple bruises on interior surface of thighs.
3. 3.A bruise 3 x 1 cm below left eye.
4. 4.A bruise 3 x 3 cm on forehead between eyes.
5. On genital examination On pananal area multiple small bruise were present. Swabs were taken On anal area there was evidence of bleeding while anal was not furnal shape.
6. On rectal examination there was a tear present at 3'O clock position.
7. In the opinion of the doctor the deceased died due to asphyxia caused by throttling leading to cardio pulmonary rest and death and further opined that deceased under went through sexual assault before death. He during general examination observed perianal area, observed multiple small bruises. Obtained swa bs and found evidence of bleeding on anal area. A tear at 3,0' clock position was also noticed on rectal examination.
8. Rest of the prosecution witnesses are almost formal in nature.
9. 4.After closure of the prosecution case the statement of the appellant was recorded under section 342, Cr.P.C. In response to a question that "why this case against you and why the witnesses deposed against you", the appellant replied in following terms: I am innocent. I have falsely been involved in this case due to suspicion. All the PWs are related inter se and deposed against me as being relatives of the complainant."
10. 5.The appellant neither opted to give evidence on Oath as provided under section 340(2) of the Code of Criminal Procedure, 1898, in disproof of the allegations leveled against him nor did he produce any defence evidence.
11. 6.The learned trial court vide its judgment dated 15-09-2010 found the appellant guilty, convicted and sentenced him as mentioned and detailed above.
12. 7.Learned counsel for the appellant contended that it was a case of indirect evidence as no one is the eye-witness of the occurrence; that witnesses produced by the prosecution were interested one, therefore, testimony could not be accepted without corroboration from unimpeachable and independent piece of evidence; that the prosecution witnesses were not reliable and confidence inspiring as they made improvements in their statement before the court over their previous statements; that the learned trial court has relied upon the last seen evidence, which is weakest type of evidence and same is the position with the evidence of Waj Takkar; that as there was no eye-witness of the alleged occurrence and the appellant was roped in the case with mala fide intention and ulterior motives; that there was no occasion with prosecution witnesses to be present at the place of occurrence, which creates doubt and benefit of doubt always tilt in the favour of accused; that medical history of the deceased do not fully support the prosecution version and finally prayed for acceptance of the appeal.
13. 8.On the other hind, learned Deputy Prosecutor General vehemently opposed the contention raised by the counsel of the appellant and contends that the appellant is fully involved in the heinous crime of capital punishment; that the prosecution produced inspiring confidence trustworthy and sure footed witnesses, who furnished evidence of last seen, Waj Takkar, which is fully corroborated by medical evidence and thereby all the links of chain are complete and proved the guilt of the appellant to its hilt; that judgment of the learned trial court is very well-reasoned and has discussed almost all aspects of the case hence same does not require interference and prayed for dismissal of appeal.
14. 9.We have heard learned counsel for the appellant and learned deputy prosecutor general and also scrutinize the record with their assistance.
15. 10.It is an admitted fact that nobody had seen the appellant committing offence of sodomy and murder against the miserable baby yet prosecution had brought circumstantial evidence against the appellant. The law was set into motion by Fazal-e-Rabbi (PW-11), the rickshaw driver, father of ill-fated minor, Salman Khan, on the basis of complaint (Ex-PD). According to which, at about 4.00 p.m., in order to have meal he came to his house where a bad news was waiting for him that his minor son, Salman Khan, was missing since 3.00 pm. He and his neighbours started the search of his beloved child. Then he rushed to the mosque and made announcement in a speaker of masjid.
16. After the announcement, he started the search of his missing son and during the search, he also went to the house of Mab Shah, his 'Humzulf', where Hassan Khan, his brother-in-law (Mamoon of Salman Khan) also met him. They informed the complainant that they had seen Salman Khan in the company of Raheem Ullah, appellant while giving candies from the shop and entering in his Bhaithak. Upon this information, they along with resident of locality went to the Baithak of Raheem Ullah at about 12.10 am (night) and found the Baithak of appellant locked from outside.
17. Complainant, Fazl-e-Rabbi along with aforementioned PWs peeped through the window and saw that his son Salman, deceased, was lying, in naked and injured condition, in the corner of Baithak.
18. On his call, police came at the scene of occurrence and removed lock of Baithak by breaking with hammer, entered into the baithak and found minor Salman Khan in afore stated condition. Mazhar Hussain (PW-16) recorded statement/Fard Bayan (Ex-PD) of Fazal-e-Rabbi, complainant, and sent the same to the police station, upon which FIR (Ex-PD/1) was recorded by Muhammad Awais (PW- 5). The dead body was escorted to hospital where Dr. Ghulam Abbas Awan (PW-15), CMO, DHQ Hospital, conducted autopsy on the dead body of Salman Khan (deceased) and opined that deceased died due to asphyxia caused by throttling leading to cardio-pulmonary arrest and death and further opined that deceased under went through sexual assault before death. He during general examination observed on perianal area, multiple small bruises. Took swabs and found evidence of bleeding on anal area. A tear at 3.0' clock position was also noticed on rectal examination.
19. 11.From afore referred evidence, it has become crystal clear that dead body of miserable baby, Salman Khan, was recovered from the Baithak after midnight, who was sodomized and thereafter done to death.
20. 12.So far as, occupation of Baithak by the appellant is concerned, in order to establish that the appellant Raheem Ullah, was occupant of the Baithak, where unfortunate occurrence took place, prosecution produced Nasir Shahzad, Constable PW-8, in whose presence appellant was arrested by Mazhar Hussain, SI (PW-15) and during personal search one receipt pertaining to the rent of month of March, 2010, was taken into possession, vide seizure memo (Ex-PE). Arif Khan (PW-9), the landlord of said Baithak, is also produced by the prosecution who got exhibited said rent receipt as Ex-PF. By producing afore-referred two PWs, the prosecution established that said Baithak was occupied by Raheem Ullah, appellant, as tenant. Although, learned counsel for the appellant has contended that evidence of receipt (Ex-PF) is fabricated but contention is without force as PWs during evidence, specifically, stated about the said Baithak as residence of appellant but the defence did not challenge this part of deposition of witnesses. It is settled law that facts which remained uncross examined are deemed to be admitted. See Sheraz Tufail v. The State (2007 SCM R 518) and Mst. Nur Jehan Begum through Legal Representatives v. Syed Mujtaba AU Naqvi (1991 SCM R 2300). We have no hesitation to hold that Baithak from where dead body of ill- fated child, Salman, was recovered was in exclusive possession of the appellant.
13. Prosecution also produced Hassan Khan (PW-12) who on 16.03.2010, along with Mab Shah had seen minor, Salman Khan, at about 2.30 p.m. with Raheem Ullah, appellant, giving candies and thereafter taking away in his company to his Baithak. PW-12 is also witness who along with Fazal-e- Rabbi, complainant, peeped from the window of the Baithak and subsequently dead body was recovered in his presence. Although, learned counsel has contended that evidence of PW-12, Hassan Khan, is liable to be discarded as prosecution did not produce Mab Shah, the other witnesses of the set, and thereby withheld best available evidence and he is an interested witness.
21. It is on the record that Mab Shah, PW, was given up being unnecessary by the prosecution but in the instant case it cannot be said that prosecution has withheld best evidence because PW-12, Hassan Khan, was also accompanying Mab Shah, PW, has been produced. It is not the quantity rather the quality of testimony which matters; moreover, it is the prerogative of the prosecution to produce as many witnesses as it desire to prove a particular fact. Admittedly, Hassan Khan (PW-12) is E Mamoon of deceased, Salman, but in the absence of any animosity or motive for false implication he cannot be termed as an `interested witness'. The evidence furnished by Hassan Khan (PW-12) is natural and he during cross-examination stated that appellant was living in the said Baithak since last 3/4 months. PW, being "Mamo" of deceased, was a natural visitor of his sister, therefore, he was well familiar with appellant. A question arises in the prudent mind that why PW being Mamo permit minor, Salman, in the company of appellant. PW-12 during cross- examination furnished plausible explanation by stating that he did not ask anything from appellant because minor used to play with him as being neighborer.
14. Prosecution has produced another limb of evidence in the shape of Waj Takkar, which came out from the mouth of Zaheer Khan (PW-10) who is an independent witness, having no relationship, with the complainant party but resident of same locality had seen appellant locking his Baithak and rushing towards the street with pale face at about 5.30 p.m. on 16.03.2010, prior to recovery of dead body from the same Baithak. The said witness was cross-examined by learned defence counsel but he could not extract anything favourable to the appellant. Defence even could not bring on record any motive for false implication of the appellant. Said PW narrated the entire episode to the complainant, Fazal-e-Rabbi (PW-11) after registration of FIR at about 1.30/2 p.m and this fact is also corroborated by Fazale-Rabbi (PW-11) in his examination-inchief. Moreover, evidence of said PW imports further corroboration from the circumstances of the case that when Fazale-Rabbi, complainant, along with other PWs peeped from the window of locked Baithak and called police. The locks were broken with the help of hammer by Mazhar Hussain, SI (PW-16) and same was taken into possession vide recovery memo (Ex-PH).
22. I15. The prosecution further proved the positive potency test of the appellant by producing Dr. Irfan Khilji (PW-3) who proved MLR (Ex-PB).
16. Much emphasis has been laid by the learned counsel for the appellant that last seen evidence is the weakest type of evidence which should not form basis of conviction in a murder case. We are mindful of the proposition that last seen evidence is not sufficient for establishing the crime where it requires making conjectures to connect the accused person with the crime or where there are reasonable possibilities that someone else has committed the offence, but if the chain of facts is such that no reasonable inference can be drawn except that the accused has committed the offence after the victim has been last seen in his company, then in the absence of reasonable explanation from the accused, this evidence can be relied upon for convicting him for the offence.
23. Here, we are guided by the dictum laid down by Honorable Supreme Court of Pakistan in the case reported as Khursheed v. The State (PLD 1996 SC 305), wherein, at page 315, it was enunciated as under:-- "From the above reports, it is evident that the circumstance namely, that deceased was last seen with the accused persons is a reliable piece of evidence if corroborated by other pieces of circumstantial evidence which are interlinked and which clearly connect the accused persons with the commission of offence charged with."
24. It is further observed in the said judgment:-- "I may observe that while appraising the circumstantial evidence, the court is to keep in mind the location of the incident. If the place of incident is a place where no witness was available and the accused had the exclusive knowledge about the incident, the simpliciter denial on the part of accused will not be sufficient to nullify the circumstantial evidence of the nature which directly connects him with the commission of offence charges with. But he should raise of plea of nature which is being tested on the touchstone of probability, warrants a reasonable hypothesis of accused innocent"< In the instant case, the last seen evidence produced by the prosecution is very much consistent and approximity of time is such that is sufficient to connect the appellant with the crime, particularly, keeping in view the fact that the victim was an infant and could not have left the company of the accused of his own accord. We have also observed that the last seen evidence is fully corroborated by the other limbs of evidence produced by the prosecution in shape of Waj Takar and medical evidence.
17. Prosecution produced overwhelming circumstantial evidence that minor, Salman (deceased) was lastly seen in the company of Raheem Ullah, appellant, entering the Baithak, Waj Takar evidence seeing accused with pale face leaving Baithak after locking, recovery of the dead body of deceased, Salman, from the Baithak, occupied by appellant being tenant of Arif Khan (PW-9), coupled with medical evidence form a complete chain of evidence and exposed Raheem Ullah, appellant, to provide explanation about the whole episode but appellant failed to offer any explanation while he was afforded full opportunity to explain by making statement under section 342, Cr.P.C., leading defence evidence or appearing in the witness box under section 340(2), Cr.P.C.
25. The contention of the learned counsel for the appellant that without direct evidence the appellant cannot be sentenced to death. carries no weight. Reliance can safely he placed on Jafar Ali v. The State (1998 SCM R 2669) wherein at Page No. 2678, it has been held by the Honorable Supreme Court of Pakistan as under:-- After careful examination of the record, we are satisfied that overwhelming circumstantial evidence has been brought against the appellant. The contentions of the learned counsel for the appellant that without direct evidence the appellant cannot be sentenced to death is without force. If the circumstantial evidence connects the accused with the offence without any reasonable doubt, the same can form basis of the capital punishment. This position is accepted by the Islamic jurisprudence also. Al-Majalla which has the code of Islamic laws, promulgated by Ottoman Caliph and has remained in force in centuries in different part of the Islamic world, as recognized the circumstantial evidence even in the case of murder."
26. In view of the above discussion, we find no merit in this appeal, which is hereby dismissed. All the sentences awarded to the appellant by the trial court vide its judgment dated 15.09.2010 including the sentence of death are upheld. The murder reference is answered in affirmative. However, the learned trial court while awarding sentence in default of payment of compensation mentioned six month, RI, which shall be read as six month, SI, as envisaged in section 544-A of Criminal Procedure Code, 1898.