This appeal has been filed by Ghouns Bukhsh (appellant) against the judgment dated 11.11.2010 passed by the learned Addl. Sessions Judge, Rajanpur in case FIR No, 424 dated 14.10.2009 offence under Section 367-A, PPC (Sections 302 and 34, PPC were added later on) registered at Police Station Saddar District Rajanpur for the abduction of Sana Ullah son of complainant in order to subject him to unnatural lust and committing his murder. Vide judgment dated 11.11.2010 passed by the learned Addl. Sessions Judge, Rajanpur, the appellant has been convicted under Section 302(b), PPC and sentenced to imprisonment for life, with further direction to pay Diyat amount to the legal heirs of the deceased under Section 30,. PPC as was prevalent during the days of occurrence. Benefit of Section 382-B, Cr.P.C. was also extended to him. Ghulam Hussain alias Hussain Bukhsh, complainant has filed Crl. Revision No, 113/2011 for enhancement of sentence imposed upon the appellant from imprisonment for life to major penalty of death. Since both these matters have arisen out of the same judgment, therefore, shall be decided together through this single judgment.
2. Prosecution story, as set out in the FIR (Ex. PE/1) registered on the written statement (Ex.PE) of Ghulam Hussain alias Hussain Bukhsh, complainant (PW.7) is that his son namely Sana Ullah aged about 16 years had friendship with Ghouns Bukhsh (appellant), who intended to commit unnatural offence with his son. The complainant forbade his son to have friendship with the appellant and also asked the appellant to leave his son. On 12.09.2009, the complainant alongwith his brother Bilal Hussain, sons Jind Wadda and Sana Ullah was sitting in the baithak of Ghulam Hussain Dreshak. At around 5.30 p.m. Sana Ullah son of complainant was standing at some distance from the baithak.
Meanwhile, Ghouns Bukhsh (appellant), Muhammad Bukhsh and Hazoor Bukhsh sons of Wahid Bukhsh came on a motorcycle and forcibly abducted his son Sana Ullah with intent to commit unnatural offence, who were identified by the complainant as well as other witnesses. The complainant party approached Ghouns Bukhsh, Muhammad Bukhsh and Hazoor Bukhsh and demanded the return of Sana Ullah, who while procrastinating the matter promised to return son of the complainant within two days. After lapse of two days, the complainant party again went to the accused persons who lingered on the matter on one pretext or the other. The complainant moved a petition before the learned Sessions Judge, Rajanpur and on the direction of learned Sessions Judge, the case was registered.
3. During the course of investigation, Muhammad Bukhsh and Hazoor Bukhsh co-accused of the appellant remained absconder and proceedings under Sections 87/88, Cr.P.C. were initiated against them. The appellant was summoned by the learned Additional Sessions Judge, Rajanpur to face the trial of Copies of relevant documents were provided to him, as required under Section 265-C, Code of Criminal Procedure and formal charge under Sections 367-A, 302 and 34, PPC was framed against him on 10.02.2010, to which he pleaded not guilty and claimed trial. After the closure of prosecution evidence, statement of the appellant under Section 342, Code of Criminal Procedure was recorded on 10.11.2010, wherein he refuted all the allegations of the prosecution and professed his innocence. In answer to a question as to why the case against him and why the prosecution witnesses had deposed against him, the appellant stated as under: "I am innocent. In fact Sana Ullah deceased was a criminal and desperate person and he had enmity with Nazeer Batwani. Nazeer Batwani had illicit relations with mother of the deceased and prior to this said Nazeer Batwani got lodged the case against me and Sana Ullah deceased under Section 324, PPC. Sana Ullah deceased want to murder Nazeer Batwani who had suspicion of illicit relations with his mother. I have not committed murder of the deceased and have been falsely involved into this occurrence."
The appellant neither opted to appear as his own witness, in disproof of the allegations leveled against him, as provided under Section 340(2), Code of Criminal Procedure nor did he produce any evidence in his defence. However, after conclusion of trial, the learned trial Court convicted and sentenced the appellant as detailed above. Hence this appeal and revision petition.
4. Learned counsel for the appellant in support of this appeal, contends that the appellant has falsely been implicated in this case; that Sana Ullah son of the complainant was allegedly abducted by the appellant and his co-accused on 12.09.2009 at about 5.30 p.m. whereas the matter was reported to the police on 14.10.2009 at 8.30 p.m. after the delay of about one month and three days of the alleged abduction; that it was mentioned in the FIR and stated before the learned trial Court by the complainant that he moved a petition before the learned Sessions Judge Rajanpur and on the direction of learned Sessions, Judge, the case was registered; that no written application qua the alleged abduction was moved by the complainant to the concerned SHO or hierarchy in the police department; that no specific motive behind the occurrence was alleged in the FIR and it was simply stated by the complainant that the appellant wanted to commit unnatural offence with Sana Ullah son of complainant; that the complainant neither complained against. the appellant to the police or to any other person nor son of complainant moved an application to the police or to any person against the petitioner regarding his conduct and even the motive was not put to the appellant during his statement recorded under Section 342, Cr.P.C.; that Sana Ullah was allegedly abducted forcibly by the appellant and his two co-accused on one motorcycle within the view of complainant party 'but the conduct of complainant (PW.7) and Jind Wadda (PW.8) is highly improbable and no reliance can be 'placed on their statements as they are father and brother, respectively of Sana Ullah (deceased); that when the said eye-witnesses saw the appellant along with his co-accused while abducting Sana Ullab, they did not follow them on any motorcycle; that they approached the appellant's side and demanded the return of alleged abductee but they did not move any application before the police with regard to the abduction of Sana Ullah; that the complainant himself admitted during cross-examination that they were sitting outside the baithak in the Courtyard, there was a door of that compound wall and at the time of abduction, his son was out of the said compound premises; that the place of occurrence is situated in Kotla Eisan Town which is a populated area but no one from the vicinity except the complainant party saw the appellant and his co-accused while abducting Sana Ullah. So far as extrajudicial confession allegedly made by the appellant along with his co-accused namely Muhammad Bukhsh and Hazoor Bukhsh before Manzoor Ahmad (PW.5) and Farid Bukhsh (PW.6) is concerned, learned counsel contends that it was joint confession and even they have not disclosed any detail of incident; that the said prosecution witnesses have stated that the appellant and his co-accused confessed their guilt about the murder of Sana Ullah (deceased) but there was no reason or occasion for the appellant etc. to make such confession before these two witnesses as none of them had any position/status in the society prompting the appellant etc. to make such a confession before them; that Manzoor Ahmad (PW.5) was employee on a spare parts shop whereas Farid Bukhsh (PW.6) was a peter engine mechanic and moreover, it has not been disclosed as to what influence they had over the complainant in order to get pardon for the appellant; that admittedly there is no direct evidence so far as murder of Sana Ullah (deceased) is concerned; that even the very identification of the dead body has not been established as according to Dr. Abdul Hakeem (PW.1), who conducted post-mortem examination of the dead body of alleged Sana Ullah (deceased) stated during cross-examination that the skin of dead body and the head had disappeared, only the skeleton of the deceased existed add apparently the dead body was not identifiable; that due to decay of the dead body; the cause of death could not be determined. So far as the alleged place of recovery of dead body is concerned, learned counsel contends that the same was recovered from the land of one Tayyab Shah and the same was not owned by the appellant; that the land from where the dead body was recovered, was cultivated by Shafique Gujjar; that said Tayyab Shah and Shafique Gujjar. neither appeared before the police during the course of investigation nor produced before the learned trial Court; that mere recovery of dead body on the pointation of the appellant, in the absence of any other incriminating evidence, was not sufficient to hold him guilty; that Sana Ullah (deceased) was allegedly got abducted by the appellant and his co-accused on a motorcycle but the same was not taken into possession during investigation; that the alleged recovery of three pieces of string (P.5/1-3) at the instance of the appellant, which were taken into possession vide recovery memo. (Ex.PH), is not helpful for the prosecution for the reason that the same can be obtained from open market and that the cause of death was not known in this case; that the version of the appellant is more probable, convincing and gets full support from prosecution's own case; that viewing from all angles, the prosecution case is full of doubts and the appellant under the circumstances, is entitled to the benefit of doubt not as a matter of grace but as of right.
5. On the other hand, learned Deputy Prosecutor General assisted by learned counsel for the complainant vehemently opposes this appeal on the grounds that the complainant or the other witnesses of prosecution have absolutely no enmity towards the appellant for his false implication in this case; that after the abduction of Sana Ullah (deceased) by the appellant and his co- accused, the complainant along with others approached them for the return of his son but they procrastinated the matter on one pretext or the other, therefore, the complainant filed a petition before the learned Sessions Judge, Rajanpur and on the direction of learned Justice of Peace, the case were registered against the appellant and others, therefore, there was no conscious delay in reporting the crime to the police; that the appellant along with Muhammad Bukhsh and Hazoor Bukhsh came at the spot and forcibly abducted Sana Ullah (deceased) within the view of complainant (PW.7), Jind Wadda (PW.8) and Bilal Hussain (PW since given up); that 'a specific motive has been alleged by, the prosecution to the effect that the appellant wanted to commit unnatural offence with Sana Ullah (deceased) and the complainant forbade his son from keeping friendship with the appellant; that the prosecution also produced two witnesses namely Manzoor Ahmad (PW.5) and Farid Bukhsh (PW.6) before whom the appellant and his co-accused made extrajudicial confession regarding commission of murder of Sana Ullah (deceased); that the, appellant also got recovered dead body of Sana Ullah (deceased); that the prosecution case is further, corroborated by the recovery of three pieces of string (P.5/1-3) at the instance of the appellant from his house, which were taken into possession vide recovery memo. (Ex.PH); that the prosecution case is supported by the medical evidence furnished by Dr. Abdul Hakeem (PW.1); that the appellant was found fully involved during the course of investigation; that the evidence produced against the appellant forms a continuous chain and no link is missing; that the version of the appellant is nothing but an afterthought just to save his skin; that the prosecution has successfully brought home guilt against the appellant to the hilt and there is no merit in this appeal. So far as Crl. Revision No, 113/2011 is concerned, learned counsel for the complainant contends that the sentence awarded to Ghouns Bukhsh, Respondent No, 2 by the learned trial Court is not sufficient and the same may be enhanced to the maximum which is death sentence.
6. I have heard learned counsel for the appellant as well as the learned Deputy Prosecutor General for the State assisted by learned counsel for the complainant at a considerable length and have also gone through the record very minutely.
7. Since there is no direct evidence qua the murder of Sana Ullah (deceased) and prosecution case hinges on 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 single link 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 vs. Major Karam Elahi Zia and another" (1992 SCM R 1047), "Sarfraz Khan vs. The State" (1996 SCM R 188) and "Asadullah and another vs. State" (PLJ 1999 SC 1018). In the case of Sarfraz Khan (supra), the august. Supreme Court of Pakistan, at page 192, held as under: "7. ...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...".
Keeping in view the guidelines given by the Hon'ble Supreme, Court of Pakistan, I would discuss the evidence, produced by the prosecution in this case.
8. The incident wherein, Sana Ullah son of complainant was allegedly abducted by the appellant and others, took place on 12.09.2009 at around 5.30 p.m. in the area of Mauza Kotla Eisan within the jurisdiction of Police Station Saddar District Rajanpur. The distance between the Police Station and the place of occurrence is twelve kilometers. The matter was reported to the Police by Ghulam Hussain alias Hussain Bukhsh, complainant (PW.7) through written statement (Ex.PE) on 14.10.2009 at about 8.30 p.m. and formal FIR (Ex.PE/1) was registered on the same night at 8.55 p.m. There is a delay of about one month and three days in reporting the crime to the police and the reason assigned by the complainant in the FIR and stated before the learned trial Court is that they approached the appellant's side for the return of his son but they promised for two days. They again went to the house of accused, who finally refused to return son of the complainant. The complainant simply stated in the FIR and before the learned trial Court that he moved a petition before the learned 'Sessions Judge, Rajanpur and on the direction of the learned Sessions Judge, the case was registered but no proof was brought on record. or produced before the learned trial Court which could show that the complainant ever moved any application before the concerned SHO or hierarchy in the police department qua abduction of his son. Therefore, I am of the view that the matter was reported to the police after due deliberation and consultation.
9. It is case of the prosecution that Sana Ullah son of complainant, was allegedly abducted forcibly by the appellant and his two co-accused on one motorcycle within the view of complainant party.
The conduct of complainant (PW.7) and Jind Wadda (PW.8), who are father and brother, respectively of Sana Ullah (deceased), is highly improbable and no reliance can be placed on their statements as the complainant himself admitted during cross-examination that they chased the accused persons to some distance but they did not follow them on motorcycle. He has further stated that they did not try to hire any motorcycle from any person of the vicinity. As stated by the complainant before the learned trial Court, they were sitting in the Courtyard outside the baithak and there was a door of compound wall. At the time of abduction, son. of the complainant was out of the said compound premises while they were sitting in the Courtyard, which suggests that they never witnessed the abduction of his son. The place of occurrence is situated in Kotla Eisan Town which is a populated area but no one from the vicinity saw the appellant and his co-accused while, abducting Sana Ullah. Moreover, the learned trial Court has rightly observed in Para 26 of its judgment that the charge framed under Section 367-A of PPC against the accused (appellant) has not been proved by the prosecution by convincing evidence. Therefore, presence of the complainant (PW.7) and Jind Wadda (PW.8) at the time of alleged abduction becomes doubtful.
10. No specific motive was alleged in the FIR and it was simply stated by the complainant that the appellant wanted to commit unnatural offence with his son Sana Ullah. The complainant neither complained against the appellant to the police or to any other person nor his son moved an application to any official against the appellant regarding his conduct. Even otherwise, the motive was not put to the. appellant during his statement recorded under Section 342, Cr.P.C. It is well settled by now that a piece of evidence which has not been put to an accused during his statement under Section 342, Cr.P.C. cannot be used against him. Therefore, the prosecution has not been able to prove the motive against the appellant.
11. It is case of the prosecution that the appellant along with his co-accused confessed his guilt regarding murder of Sana Ullah (deceased) before Manzoor Ahmad (PW.5) and Farid Bukhsh (PW.6). Extrajudicial confession is always considered a weak type of evidence. The question of evidentiary value of the extrajudicial confession came up for consideration before the August Supreme Court of Pakistan in the case reported as "Tahir Javed vs. The State" (2009 SCM R 166), wherein at page 170, the Apex Court of Pakistan has been pleased to observe as under: "10.....It may be noted here that since extra-judicial confession is easy to procure as it can be cultivated at any time therefore, normally it is considered as a weak piece of evidence and. Court would expect sufficient and reliable corroboration for such type of evidence. The extra judicial confession therefore must be considered with over all context of the prosecution case and the evidence on record. Right from the case of Ahmed v. The Crown PLD 1951 FC 107 it has been time and again laid down by this Court that extra-judicial confession can be used against the accused only when it comes from unimpeachable sources and trustworthy evidence is available to corroborate it. Reference in this regard may usefully be made to the following reported judgments:--
(1) Sajid Mumtaz and others v. Basharat and others 2006 SCMR 231, (2) Ziaul Rehman v. The State 2001 SCMR 1405, (3) Tayyab Hussain Shah v. The State 2000 SCMR 683, (4) Sarfraz Khan v. The State and others 1996 SCMR 188."
Though they (PWs-5 and 6) have stated that the appellant and his co-accused confessed their guilt about the murder of Sana Ullah (deceased) but there was no reason or occasion for the appellant etc. to make such confession before them as none of them had any position/status in the society prompting the appellant to make such a confession before them as Manzoor Ahmad (PW.5) was an employee on a spare parts shop whereas Farid Bukhsh (PW.6) was peter engine mechanic. Moreover, it has not been disclosed as to what influence they had over the complainant in order to get pardon for the appellant. The alleged extrajudicial confession made by the appellant as well as Muhammad Bukhsh and Hazoor Bukhsh was joint. No details of the incident, such as when Sana Ullah was murdered, where he was murdered' and how he was murdered, were disclosed in the extrajudicial confession. In light of the above discussion, I am of the view that the evidence of extra-judicial confession in the instant case is not worthy of reliance.
12. The identification of the dead body has not been established as according to Dr. Abdul Hakeem (PW.1), who conducted post-mortem examination of the dead body allegedly recovered from the land of Tayyab Shah, stated during cross-examination that skin of the dead body as well as the head had disappeared and only the skeleton of the deceased existed. Due to decay of the dead body, the cause of death could not be determined and apparently, the dead body was not identifiable. Wazeer Ahmad, S.I./I.O, (PW.10) also admitted in his cross-examination that the skin of whole dead body was peeled off'. Therefore, the very moot question whether it was the dead body of Sana Ullah (deceased) or not remained shrouded in mystery.
13. So far as the alleged recovery of dead body on the pointation of the appellant is concerned, the land from where it was got recovered, was not owned by the appellant. Wazeer Ahmad, Sub- Inspector (PW.10) who conducted investigation of this case stated in his cross-examination that the dead body was recovered from the land of one Tayyab Shah, which was cultivated by Shafique Gujjar. Said Tayyab Shah and Shafique Gujjar neither appeared before the police during the course of investigation nor where they produced before the learned trial Court during trial. Mere recovery of dead body on the pointation of the appellant, in the absence of any other incriminating evidence, was not sufficient to hold him guilty.
14. It was case of the prosecution in the FIR and before the learned trial Court that Sana Ullah was abducted by the appellant and others on a motorcycle but the said motorcycle was never taken into possession during the course of investigation.
15. The recovery of three pieces of string (P.5/1-3) allegedly effected at the instance of the appellant, which were taken into possession vide recovery memo. (Ex.PH), is inconsequential because of the reasons that the same can be obtained from open market and that the cause of death was not determined in this case.
Sequel of the above discussion is that the prosecution case is doubtful in nature and the appellant is entitled to the benefit of doubt not as a matter of grace but as of right.
16. Now I take up the version of the appellant disclosed by him in his statement recorded under Section 342, Code of Criminal Procedure and put to the prosecution witnesses during their cross- examination. Since the prosecution case is doubtful in nature, therefore, there is no need to discuss the defence version,. which even otherwise is exculpatory in nature.
17. For the foregoing reasons, Crl. Appeal No, 1106 of 2010 filed by Ghouns Bukhsh (appellant) is allowed. Conviction and sentence awarded to the appellant vide judgment dated 11.11.2010 passed by the learned Additional Sessions Judge, Rajanpur are hereby set aside and he is acquitted of the charge levelled against him by extending him benefit of doubt. He is present in Court, on bail. His sureties stand discharged from the liability of bail bonds.
18. Since I have acquitted Ghouns Bukhsh, appellant by extending him benefit of doubt, therefore, the question for enhancement of quantum of sentence does not arise. As such, there is no merit Crl. Revision No, 113/2011 and the same stands dismissed. However, it, is clarified that the observations made in this judgment are relevant only for the disposal of this appeal, which shall not prejudice the case of co-accused of the appellant, still absconding.