SARDAR MUHAMMAD SARFRAZ DOGAR, ,J.--- Muhammad Asad (appellant) was indicted by the learned Additional Sessions Judge, Lahore to face trial in case FIR No. 1397 dated 25.10.2012 offence under sections 302/377, P. P.C . registered at Police Station Kahna, Lahore with the accusation that on 25.10.2012 at about 6.00 p.m. (evening) the appellant had committe d carnal intercourse against the order of nature with Sajid aged about 8/9 years in the deserted quarter of Mehr Siddique situated in Gulshan Lahore Scheme within the territorial limits of Police Station Kahna District Lahore and after committing unnatural offence with Sajid, the appellant Muhammad Asad made a brick blow hitting on the head of Sajid, who succumbed to the injury and died at the spot.
2. After regular trial held by the learned Additional Sessions Judge Lahore vide judgment dated 23.10.2614, Muhammad Asad appellant was convicted and sentenced as under:- Under section 377, P.P.C., 10 years S.I. with direction to pay Rs, 50,000/- as fine and in case of non-payment of fine to further undergo one month's S.I.
Under section 302(b), P.P.C., imprisonment for life for committing qatl-i-amd of Sajid deceased with direction to pay compensation of Rs, 3,00,000/- to the legal heirs of the deceased as envisaged under section 544-A, Cr.P.C. or in default of payment thereof to further undergo six months S.I.
Both the sentences awarded to the .appellant were directed to run concurrently and benefit of section 382-B, Cr.P.C. was also extended to him.
3. Feeling aggrieved by the abovesaid conviction and sentence the appellant Muhammad Asad has preferred captioned appeal which is being disposed of through instant judgment.
4. The facts of the case have succinctly been penned down in the impugned judgment of the learned trial court which need not to be recapitulated here.
5. Heard. Record perused.
6. The sad incident in the present case had allegedly taken place at 6.00 p.m. on 25.10.2012 in the deserted quarter of Mehr Siddique situated in Gulshan Lahore Scheme within the territorial limits of Police Station Kahna District Lahore which was at a distance of 2 kilometers towards West from the Police Station and the matter was reported by Khurshid Ahmad complainant (PW1) father of Sajid deceased through complaint (Ex. PA) made to Abdul Rasheed, S.I. (PW4) at Allah Hoo Chowk on the same day at 8.40 p.m. on the basis of which formal FIR (Ex.
PB) was reduced into writing by Muhammad Razzaq, ASI (PW5) the same night at 9.00 p.m. According to the statement of Nazir Hussain, Inspector (PW1 1), at about 8.15 p.m. he received information about the occurrence, he along with other police officials went to the place of occurrence, examined the dead body of the deceased, prepared the injury statement Ex. PK and inquest report Ex. PH of the deceased and sent the dead body of Sajid deceased through Jafar Hussain (PW9) and Javaid Akhtar Constables to Jinnah Hospital, Lahore for its post- mortem examination.
7. Seemingly , postmortem examination on the dead body of Sajid deceased was conducted on the next day, i,e, 26.10.2012 at 2.30 p.m., and as per opinion of Dr. Liaqat Ali (PW7), the time between the death and postmortem examination was about 20/12 hours. Even otherwise, Dr. Liaqat Ali (PW7), during the cross-examination has admitted that he conducted the postmortem on the dead body of the deceased as and when he received the police papers and he conducted the postmortem of the dead body without any delay as he received the police papers.
Furthermore, the complaint was not drafted by the complainant himself rather the same was got drafted by the complainant while sitting in his house from one. Master Muhammad Aslam. So it was a case of delayed postmortem, which casts serious doubt that the FIR was got recorded with promptitude as claimed by the prosecution, but the inference can be drawn that the intervening period was consumed in fabricating the prosecution story after the preliminary investigation, otherwise there was no justification for conducting the postmortem examination on the next day at 2.30 p.m. instead of conducting the postmortem examination on the same night. Guidance is derived from the case of "Irshad Ahmed v. The State" (2011 SCMR 1190), wherein the Hon'ble Supreme Court of Pakistan has observed as under:- "We have further observed that the post-mortem examination of the deadbody of Shehzad Ahmed deceased had been conducted with a noticeable delay and such delay is generally suggestive of a real possibility that time had been consumed by the police in procuring and planting eye-witnesses and in cooking up a story for the prosecution before preparing police papers necessary for getting a post-mortem examination of the deadbody conducted."
'8. To prove the ocular account, the prose cution produced Khursheed Ahmad complainant (PW1) and Muhammad Rafique (PW2) Khursheed Ahmad complainant (PW1) is father of the deceased whereas Muhammad Rafique (PW2) is real son-in-law of the complainant and brother-in-law of the deceased and Salah-ud-Din (PW8) is the real brother of the complainant. At the same time, they were also chance witnesses as the house of the complainant was situated at a distance of 1-1/2 or 2 k.m. from the place of occurrence, and Investigating Officer, Nazir Hussain, Inspector (PW 11) admitted during the cross-examination that Muhammad Rafique (PW2) and Abdul Ghafoor are not resident of Gulshan-e-Lahore Scheme. Both the said eye-witnesses were also chance B witnesses and they had claimed to have attracted to the place of occurrence upon hue and cry of the deceased. As already mentioned above, there was no house or shop of any person situated anywhere close to the said deserted house of occurrence and, thus, it was not readily , believable that the above mentioned eye-witnesses would be attracted to the place of occurrence upon hue and cry of the deceased. Reliance is placed on "Nazir Ahmad v. The State "
(2018 SCMR 787 ).
9. Although both the eyewitnesses claim ed that after the incident when they caught hold the deceased in their hands, their hand and clothes were stained with his blood. But surprisingly , they did not produce the said clothes to the Investigating Officer to establish this fact. Furthermore, Salah-ud-Din (PW8) during the cross-examination has stated that P.W. Rafique son-in-law of the complainant is residing separately in Old Kahna in the same Mohallah, whereas, Muhammad Rafique (PW2) does not appear to be truthful witness; as during the cross-examination he claimed that he had no relationship with complainant and he is his Mohalladar , therefore no implicit reliance can be placed on his evidence. Investigating Officer, Nazir Hussain, Inspector (PW1 1) during the cross-examination admitted that in the statements recorded by Muhammad Rafique (PW2) and Abdul Ghafoor (give up PW) under section 161, Cr.P.C. there is no mention that sodomy was committed with the deceased. No doubt, PW-1 Khursheed Ahmad complainant is real father of the deceased Sajid, but his conduct itself makes his presence at the spot doubtful as he claimed that he left the police at the place of occurrence and he himself came back to his house. Thereafter , he taking a somersault, stated that after reaching at the place of occurrence, the dead body was taken by the police; I was along with the police, when we reached on main road near little bridge of little Sua, he deboarded from police van and he had gone to his house, when there was nothing special for the complainant except to accompany the dead body of his deceased son. The relevant extract from cross-examination of his statement can be seen as under:- "I, reached at the place of occurrence along with the police official at about 8.45 p.m. 1 left the police at the place of occurrence and I came back to my hous e. Again stated that after reaching at the place of occurrence the dead body was taken by the police, I was along with the police, when we reached on main road near little bridge of little Sua, I deboarded from police van and thereafter I had gone to my house. I do not know that where and when Rafique and Ghafoor P . Ws had gone from the place of occurrence."
10. The occurrence in this case had taken place during a night and although the prosecution witnesses, complainant Khurshid Ahmad (PW.1) and Rafique (PW2) had claimed that they had seen the occurrence with search/emergency light yet admittedly no such search/emergency light had been secured by Nazir Hussain , Inspector (PW 11) during the course of investigation of this case. This by itself is a circumstance which is sufficient to raise an eyebrow qua the identity of the appellant at the spot during night time. Even otherwise, it was huma nly impossible for the witnesses to have seen the occurrence in the dark hours of night from the distance of 55 feet without any source of light.
Reliance is placed on "Haroon Shafique v. The State and others " (2018 SCMR 2118). It is also noticeable that despite their claimed presence at the scene, of the crime at the relevant time the conduct of the said eye-witnesses was found irrational as neither they had tried to catch hold the appellant nor chased him especially when the appellant was not armed with any firearm weapon and he was having less age than the PWs. Such behavior , on the part of the prosecution witnesses runs counter to natural human conduct and behavior explained in the provisions of Article 129 of the Qanun-e-Shahadat, Order 1984, therefore, the court is unable to accept such unbelievable proposition. Reliance is placed on "Mst. Rukhsana Begum and others v. Sajjad and others" (2017 SCMR 596). The extract from the statement of Khurshid Ahmad complainant (PW1) for ready reference is reproduced as under:- "We saw accused while torturing my son from the distance of 55 feet. As soon as we saw accused, he hit my son with brick and as soon as we reached he fled away . The accused at that time was having no any other weapon. At that time we were three persons, myself and PWs. When the accused fled away no other person besides us arrived there. I have not tried to catch hold/follow the accused. Volunteered that due to the condition of my son, I had not done so. The PWs have also not tried to chase the accused and catch hold him. The accused fled away on foot."
11. The occurrence had taken place in a deserted quarter of Mehr Muhammad Siddique near the tube well of Haji Usman situated in Gulshan-e-Lahore Scheme but both of them had not been produced by the prosecution during the trial. Similarly , neither Mst. Ayesha daughter of the complainant who had come along with the deceased to provide lunch to the complainant on a donkey cart has been produced by the complaint nor the donkey cart had been taken into possession by the Investigating Officer. Even otherwise, when Investigating Officer, Nazir Hussain, Inspector (PW1 1) visited the place of occurrence, he had not seen any donkey cart parked near the place of occurrence. During investigation neither the complainant nor any P.W. had produc ed the donkey cart before him.
Complainant and the P.Ws have also not produced Mst. Ayesha who was accompanied to the deceased prior to reaching at the place of occurrence. It is well-settled that if any party withholds the best piece of evidence then it can fairly be presumed that the party had some sinister motive behind it. The presumption under Article 129(g) of Qanun-e-Shahadat Order can fairly be drawn that if the said witnesses would have been examined, their evidence would have been unfavourable to the prosecution. Reliance is placed on "Muhammad Rafique and others v. The State and others " (2010 SCMR 385 ) and " Haroon Shafique v . The State and others" (2018 SCMR 21 18).
12. There is yet another intriguing aspect of the matter that as per complaint (Ex.P A/1) presented by Khurshid Ahmad complainant (PW1) before Abdul Rashid, S.I. (PW4) at Allah Hoo Chowk on 25.10.2012 at 8.40 p.m. but surprisingly in column No, 3 of the Inquest Report (Ex.PH) the time of death of the deceased becoming known to the police was recorded as 6.03 p.m. Furthermore, the above-said time mentioned in column No, 3 of the inquest report (Ex.PH) does not coincide with the time mentioned in the FIR (Ex.PB) wherein the time of occurrence has been shown as 6.00 p.m. On the contrary to this, Khurshid Ahmad complainant (PWI) in his statement during the cross-examination has stated:- "We proceeded towards our house at about 06.20/25 p.m. We reached to our house within 10/15 minutes from shortcut on foot. I have not recorded in my complaint that I had adopted shortcut to reach to my house. It is incorrect that today I deposed this fact only on the asking and touting by my counsel. I waited my son for 2 to 4 minutes in my house. The house of Rafiq ue P. W. is at a distance of 1-1/2 acres from my house. House of Ghafoor is adjacent to my house. Both the PWs Rafique and Ghafoor were sitting at a shop and were taking tea when 1 called them. W e reached in the quarter of Mehr Siddique from my house within 10/15 minutes.
So, with all probability and possibility it was impossible for the complainant or the witnesses to inform the police qua the occurrence which had taken subsequently from the time mentioned by the police in the Inquest Report (Ex.PH). This deliberate omission, creates reasonable doubts about the recove ry. Reliance is placed on "Mst.
Rukhsana Begum and others v . Sajjad and others" (2017 SCMR 596 ).
13. Recovery of weapon of offence i,e, brick (P-1) at the instance of appellant from a deserted house never sealed by police, accessible to all and sundry is not confidence inspiring even otherwise inconsequential as according to the record and site plan prepared by the Investigating Officer and Draftsman no such weapon of offence was shown nor the same was pointed out by the PWs when the police officials visited the place of occurrence and when the dead body was recovered from there. Furthermore, there is no report of Forensic Science Agency to establish that brick (P-1) was stained with human blood and in the absence of report of Forensic Science Agency , the alleged recovery of brick (P-1) from the possession of appellant is of no avail to the prosecution. Thus, the prosecution cannot press this recovery of brick into service as independent corroboration.
14. No doubt, bloodstained earth from the place of murder of deceased has been taken into possession by the I.O. during investigation through recovery memo FL), and report of the Punjab Forensic Science Agency (Ex.Pk) regarding bloodstained earth shows that the same is a human blood, but this piece of evidence would only advance the case of the prosecution only up to the extent that deceased was done to death on that particular place/spot, but by whom, this piece of evidence in the absence of direct evidence, would not be sufficient to prove that he was the appellant who had committed the said murder , as this is only corroborative piece of evidence. Guidance may be derived from Riaz Ahmed's case (2010 SCMR 846). As per dictum of the apex Court, corroborative evidence is meant to test the veracity of ocular evide nce. Besides, unless the blood stained earth or cotton and blood stained clothes of the victim are not sent with the same for opinion of serologist or Forens ic Science Agency to the effect that it was human blood on the crime weapon and was of the same group which was available on the clothes of the victim and the blood stained earth/cotton, such inconclusive opinion cannot be used as a piece of corroboratory evidence. Reliance is placed on " Muhammad Asif v . The State" (2017 SCMR 486 ).
15. Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be -entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". Reliance is placed on "Muhammad Mansha v. The State"
(2018 SCMR 772), "Muhammad Zaman v. The State" (2014 SCMR 749), "Muhammad Akram v. The State" (2009 SCMR 230), "Ghulam Qadir and 2 others v. The State " (2008 SCMR 1221 ) and "Tarig Pervez v. The State " (1995 SCMR 1345 ).
16. Considering the overall circumstances, it can be safely held that prosecution has not been able to prove its case against the appellant beyond reasonable doubt and the findings of guilt rendered by the M learned trial Court against the appellant are not based on correct appreciation of evidence availab le on record. Thus, I am of the considered view that once the case of the prosecution has been found susceptible to many interpretations and different theories are coming on record sufficient to disturb judicial mind about the guilt of the appellant, then on the basis of benefit of doubt he is entitled to clean acquittal. Therefore, this appeal is allowed. The impugned judgment of conviction passed by the learned trial court against the appellant is set aside and the appellant is acquitted of the charge/charges levelled against him. He be set free forthwith if not required to be detained in any other case.