Asjad Javaid Ghural, J--Through this criminal appeal under Section 410 Cr.P.C. appellant Mureed Hussain has challenged the vires of judgment dated 23.09.2015 passed by the learned Sessio ns Judge, Gujranwala in private complaint titled 'Abbas Hussain versus Mureed Hussain' in respect of offences under Sections 364-A, 367-A, 302 & 34 PPC arising out of case FIR No. 101 dated 08.03.2012 in respect of offences under Sections 302, 364-A & 34 PPC registered at Police Station, Jinah Road, Gujranwala whereby he was convicted and sentenced as under:-- Under Section 302(b) PPC Death and to pay the compensation of Rs.300,000/- to the legal heirs of deceased Ali Abbas under Section 544-A Cr:P.C. and in default thereof to further undergo simple imprisonment for six months.
Under Section 367-A PPC Death with the fine of Rs. 100,000/- and in default thereof to further undergo simple imprisonment for six months.
Under Section 364 PPC Rigorous imprisonment for ten years with the fine of Rs. 100,000/- and in default thereof to further undergo simple imprisonment for six months.
He was given the benefit of Section 382-B Cr .P.C.
2. Murder Reference No.378 of 2015 for confirmation or otherwise of death sentence of appellant Mureed Hussain shall be decided through this single judgment.
3. The prosecution story unfolded in the crime report (Ex.P A) registered on the complaint of Abbas Hussain (PW-9) is that on 07.03.2012 at about 02:00 p.m. his son. Ali Abbas aged 11-years and a student of 6th Class, left the house to play but did not return. After about 2/3 hours, he started search of his son, made announcement in the Mosques but remained fail to search him for whole night. During their search, Sobhan Ashraf and Muhammad Qamar (PW-10 & PW-11) told that they had seen the deceased near Madina Mosqu e Ahle-Hadis in the company of Muhammad Asif (since acquitted in sepa rate trial being juvenile), Mureed Hussa in (appellant) and two unknown persons, who were going towards the cricket ground whereupon they went to the houses of Mureed Hussain and Muhammad Asif, who were not available. The complainant reported the matter to the police with the apprehension that the appellant and his co-accused might have killed the deceased after committing sodomy with him.
4. Falak Sher, SI (CW-1) had visited the place of occurrence on the same day i.e. 08.03.2012; recorded the statements of witnesses, prepared rough site plan, arrested Mureed Hussain (appe llant), who made a disclosure in the presence of complainant party that after committed sodomy with deceased Ali Abbas had committed his murder and hidden the dead body in a house in green valley phase-IL He reached at green valley phase-II where the appellant got recovered the dead body of deceased All Abbas. The hands of the dead body were tied from behind.
He inspected the dead body , prepared injury statement, inquest report and escorted the same to the mortuary . He prepared rough site-plan and secured four nylon bags, pillow , pair of softy chappal and recorded the statements of witnesses under Section 161 Cr.P.C. On 15.03.2012, he took the appellant, parents of the deceased and two sealed phials alongwith envelop to Punjab Forensic Science Agency for DNA analysis. He got conducted potency test of the appellant on 17.03.2012. On completion of investigation he got prepared challan on 28.03.2012.
5. Being dissatisfied with the investigation conducted by the local police whereby the Investigating Officer did not arrest co-accused Asif and ultimately declared him innocent, which constrained the complaint to file the private complaint (Ex.PJ) wherein the learned trial Court initiated proceedings of the trial.
6. Dr. Arshad Ali Virk (PW-3) had condu cted potency test of the appellant on 17.03.2012 and found him fit for sexual act.
7. Dr. Arslan Anwar (PW-7) had conducted the autopsy on the dead body of deceased All Abbas on 09.03.2012 and observed following injuries:-- "1. There was mark of ligature around the whole neck 01 cm wide and 3 cm above sternal notch front and on back C6 vertebrae.
2. Abraded swelling 3 cm x 7 cm around right wrist joint.
3. Abraded swelling 3 cm x 6 cm around left wrist on back.
4. Abrasion 1 cm x 1 cm on ring finger of left hand at back.
5. Abrasion 2 cm x 2 cm on lateral aspect of right foot.
Internal injury:--
1. All the neck muscles were ecchymosed. Major vessels engorged. Trachea rings were ruptured. Hyoid bone was normal.
There was no bruise, abrasion around the anus, three swabs, external area, first part anus and inner part on anal canal were taken and handed over to the police. The memberance of brain were congested, larynx and trachea were compressed and injured under injury No. 1, both lungs and heart were conge sted and the neck vessels were engorged. The cause of death in this case was asphyxia (strangulation),which was due to ligation of rope around the neck which led to anoxia of brain and shock leading to death. The probable duration between injuries and death was 10 to 15 minutes whereas between death and post mortem examination it was about 24 to 36 hours.
8. At the commencement of the trial, the learned trial Court had framed a charge against the appellants to which they had pleaded not guilty and claimed to be tried.
9. The prosecution had produced 12 witnesses besides the report of Centre of Applied Molecular Biology (DNA report EX.PL). Two witnesses were examined as Court Witnesses. The appellant in his statement recorded under Section 342 Cr.P.C. had denied and controverted all the allegations leveled against him, he neither opted to make his statement under Section 340(2) Cr.P.C. nor had he produced any witness in his defence.
10. Learned trial Court, upon conclusion of the trial, had convicted and sentenced the appellant as stated above, hence the aforementioned criminal appeal and the Murder Reference.
11. Learned counsel for the appellant submits that the appellant is innocent and has falsely been implicated in this case with mala fide intention and some ulterior motives; that it was un unseen occurrence and prosecutions case hinges upon circumstantial evidence which is not sufficient to connect the appellant with the murder in issue; that Sobhan Ashraf (PW-10) and Muhammad Qamar (PW-11) of vicinity and they could not furnish any plausible explanation or reason of their presence at the relevant time; that the complainant as well as both the aforesaid witnesses are in unison in their deposition before the learned trial Court that co-accused Muhammad Asif (since acquitted in separate trial) were arrested at the same time, made joint disclosure and thereafter jointly led them as well as the police party and pointed out the place of concealing of the dead body; that the acquittal of said co-accused having identical role runs in favour of appellant as well especially when the complainant and the State has not filed appeal against his acquittal; that it is evident from the deposition of Qamar Abbas that the dead body was recovered in a pitched dark night and no source of light was available there; that the police got signatures of said witness on several blank papers without disclosing its purpose, which shows that the police conducted all the proceedings while sitting in police station; that the swabs taken from the anal canal of the deceased were sent for DNA analysis alongwith the appellant and parents of the deceased on 15.03.2012 which creates doubts in the veracity of the report obtained in consequence of the said parcel; that the story narrated by the complainant and the witnesses of last scene is different to that of the Investigating Officer qua arrest of the appellant, his disclosure and recovery of dead body on jointly pointing out with his co-accused; that the report of DNA analysis is not conclusive one and in admissible; that the medical evidence confirming homicidal death of the deceased, which by itself does not raise accusing finger toward any specific culprit; Finally, a prayer for acquittal of the appellant has been made.
12. Learned Additional Prosecutor General appearing for the State assisted by learned counsel for the complainant has vehemently opposed the aforementioned contentions with the submissions that there is not occasion for the complainant to falsely implicate the appel lant while letting off the real murderers of his close blood relative i.e. son; that both the witnesses of last seen had no ill-will or animosity against the appellant and they had naturally explained their participation in a marriage ceremony at Lahore and thereafter on their return and knowing about the disappearance of the victim, they disclos ed the story to the complainant as well as the police at the earliest; that the said witnesses had not only made their statements to the extent of last seen but also they fortified the proceedings of arrest of the appellant and his co-accused, their confession and then the recovery of dead body on their pointing out; that dead body was in the exclusive knowledge of the appellant to which he pointed out during investigation that disclosure of the appellant about murder of the deceased after committing sodomy is fully supported with the medical evidence and the positive report of DNA analysis; that the prosecution has provided consistent and confidence inspiring evidence, which had rightly been believed by the learned trial Court in its true perspective and convicted the appellant to the capital sentence and that the judgment impugned herein does not warrant interference by this Court.
13. We have heard leaned counsel for the appellant, learned additional Prosecutor General appearing for the State assisted by learned counsel for the complainant and perused the record with their able assistance.
14. This tragedy took place on 07.03.2012 and in that regard complainant Abbas Hussain (PW-9) set the law in motion on the same day at about 04:10 p.m. while making application for registration of case (P-I) with the allegation that on the fateful day at about 02:00 p.m. his son Ali Abbas aged 11-years, a student of 6 Class left the house to play but did not return. After about 2/3 hours, he started search of his son, made announcement in the Mosques but remained fail to search him for the whole night. During their search, Sobhan Ashraf and Muhammad Qamar (PW-10 & PW-11) told him that they had seen the deceased in the company of Muhammad Asif (since acquitted in separate trial being juvenile), Mureed Hussain (appellant) and two unknown persons, who were going towards the cricket ground. They went to the house of Mureed Hussain and Muhammad Asif but they were not available in their house. The complainant reported the matter to the police with the apprehension that the appellant and his co-accused might have killed the deceased after committing sodomy with him. After registration of case, the police came to complainant's house, took him alongwith the witnesses of lase seen towards the houses of the accused persons, arrested them, who confessed their guilt before the police that on the pretext of kite flying, they took the deceased to an under construction house at green valley , they committed unnatural offence with him, killed him by strangulation and concealed the dead body . Both the accused persons jointly led the police party to the aforesaid under-construction house in presence of the complainant and the witnesses of last seen and jointly pointed out the place where they had concealed the dead body from where it was recovered in their presence. Theth police also took into possession a piece of rope, the last worn clothes, shoes and four nylon bags from the place of occurrence. The Investigating Officer arrested the appellant and did not show the arrest of co-accused Muhammad Asif being in league with him although both the accused had committed unnatural lust with his deceased son and got recovered the dead body on jointly pointing out the place of its concealing, which constrained the complainant to file the private complaint. The deposition of complainant clearly shows that the deceased had disappeared and during search he was informed by two witnesses to the effect that they had lastly seen the deceased in the company of the appellant and one Muhammad Asif and after lodging the crime report both the accused persons were arrested from their houses and during investigation, they jointly disclosed that they had murdered the victim by strangulation after committing sodomy with him. They 'both' led the police party and the witnesses to the place of concealing the dead body and got recovered the same, which was in the exclus ive knowledge of none else but the appellant. During cross-examination, the complainant admitted in clear words that the recovery of dead body was affected at the disclosure of both the accused. He further deposed that "on 08.03.2018 at about 05:00 p.m. both the accused took the police to green valley phase-IL Both the accused were taken together to the green valley phase-IL. At the pointation of both the accused, dead body was recovered." Meaning thereby , the case of appellant is at par to that of his co-accused Muhammad Asif, who has already been acquitted in a separate trial being juvenile and no appeal against his acquittal has statedly been filed by the prosecution showing their satisfaction over his innocence. On the other hand, Falak Sher, S.I./Investigating Officer (CW-1) deposed that he arrested the appellant, who made disclosure that he had committed sodomy with deceased Ali Abbas, killed him by strangulation and concealed his dead body in a house at green valley phase-II. The Investigating Officer specifically denied the arrest of co-acc used Muhammad Asif alongwith the appellant contrary to the other prosecution witnesses of ocular account. This material contradiction in the depo sition of prosecution witnesses creates ' doubt in their veracity with the reasonable degree of certainty that they are telling a lie before the Court.
Furthermore, in legal parlance the evidentiary value of joint extra judicial confession as well as joint recovery is next to nothing being disapproved by august Supreme Court of Pakistan in plethora of judgments including the one in case titled "Shahid Hussain alias Multani versus The State and others" 2011 SCMR 1673 ) wherein at page No. 1675 it has been held as under:- - "The learned Additional Prosecutor-Gene ral, Punjab appearing for the State has, however remained unable to contradict that the alleged extra-judicial confession is a joint confession and even the alleged recoveries are joint recoveries and, thus, their evidentiary worth may be next to nothing."
15. Sobhan Ashraf (PW-10), a nephew of the complainant alongwith Muhammad Qamar (PW-11) had lastly seen the deceased in the company of the appe llant and his co-accused Muhammad Asif. They disclosed this fact to the complainant, accompanied him at the time of lodging the crime report, accompanied the police at, the time of arrest of the accused of the accused persons from their houses, who made disclosure regarding commission of sodomy with the deceased in their presence, killing him and concealing the dead body . During cross-examination, they deposed that they alongwith the complai nant and the police went to the house of Muhammad Asif, arrested him, who confessed his guilt in his own house, then they went to the house of appellant Mureed Hussain and after Inking the appellant with them, they went to the green valley Phase-II for the recovery of the dead body at Azan- Maghrab-W aila, but when confronted with the preposition that why they did not disclose this fact of lastly seen the deceased in the company of the appellant and his co-accused, the reply of Subhan Ashraf was that "I along-with Qamar Khalid went to Lahore. On the said day, I was having cellular phone but his battery was weak--there was marriage of Umer , who was our common friend." The other witness Muhammad Qamar deposed in his examination in chief that next morning we came to know about the missing of Ali Abbas. We informed the father of the deceased as to going of Ali Abbas with the accused and two unknown persons towards cricket ground." During cross examination, he deposed that the police alongwith us reached the place of recovery at 07:00 p.m. There was no light or bulb in the said house from where recovery was made. From the green valley , who came to house. We signed different papers shown to us which we signed but I do not know as to where those papers were written.
There was complete darkness in the under construction house of green valley . I complainant and Subhan PWs did not know the accused Mureed Hussain earlier before the occurrence. This part of deposition of both the witnesses shows that they were accompanying the police and the accused person at the time of recovery of dead body from an under construction house there was complete darkness at the time of the recovery of dead body . The question arise that when no source of light was available there, how could it be possible that the dead body was recovered from the said place and what was the purpose of taking signatures of the witnesse s on some blank papers without disclosing that what was going to be written thereon by the investigating Officer and what would be the authenticity of their evidence, when Muhammad Qamar had straightway admitted that he as well as the complainant and Sobhan Ashraf did not know the appellant prior to this occurrence. Meaning thereby, the accused persons had already been arrested due to suspicion, the dead body had already been recovered and thereafter the F.I.R. was lodged with pre-planning which could not be given weight rather it has smashed the entire prosecution version.
16. Admittedly , it was a blind murder and none had seen the appellant and his co-accused while strangulating the deceased. Dr. Arslan Anwar (PW-7) had appeared in the witness box and verified the homicidal death of deceased Ali Abbas therefore, the same needs not to be discussed elaborately as the medical report by itself does not raise finger towards any specific culprit.
17. So far as the positive report of Centre for Applied Molecular Biology (Ex.PL) is concerned, we have observed that Dr. Arslan Anwar (PW-7), after post mortem examination on the dead body of the deceased, handed over two sealed jars containing three swabs taken from the external area, first part anus and inner part of anal canal to the police on 09.03.2012, who i.e. Falak Sher, SI/IO (CW-1) took the appellant parents of deceased and two sealed phials alongwith envelops to the office of Punjab Forensic Science Laboratory for their DNA analysis on 15.03.2012 with the delay of about one week. It is amazing that the swabs were transmitted into the office of Punjab Forensic Science Agency on 15.03.2012 together with the appellant and the deceased' s parents for DNA analysis. There was no occasion or explanation on part of the Investigating Officer to with held the swabs for about one week and deposit the same in the laboratory alongwith the appellant for analysis together , which shows a real possibility of its tempering or replacement while in transit into the aforesaid office just for the purpose to get positive report. The legality and authenticity of the DNA analysis report could not be taken as conclusive proof rather it shall be read in support of the ocular account which has already been discarded in the preceding paragraphs. Reliance in this regard is placed on the dictum laid down in case titled "Azeem Khan and another versus Muja hid Khan and others" (2016 SCMR 274 ).
The next piece of evidence is the posit ive result of the DNA test. Whether the report was legally admissible, keeping in view the provision of Section 540, Cr.P.C. where under the report of biochemical expert on DNA (a biochemist) is not covered thus, it is open to a serious debate because under the above provision of law, specified experts reports excluding the report of above said expert, have been made inadmissible. This aspect would be discussed and decided in some other cases elaborately however , at present we are unable to hold the same as an admissible piece of evidence in absence of any sanction of law .
18. The appellant in his statement recorded under Section 342, Cr.P.C. has denied the prosecution evidence and claimed that he had falsely been implicated in this case due to his dispute with the complainant on account Rs.
50,000/- as consideration of milk purchase d by the complainant from him. The appellant did not give the description of said dispute. He neither opted to make statement under Section 340(2), Cr.P.C. on oath nor had he produce any witness in his defence to fortify his claim. The after thought story narrated by the appellant remained far from being proved from any source of evidence.
19. Having scanned the entire prosecutio n evidence we are of the affirmed view that the prosecution as miserably failed to bring home guilt of the appellant beyond shadow of reasonable doubt. The evidence of last seen has no legs to stand, which has been discarded being not believable. The complainant lodged the F.I.R. at the instance of Subhan Ashraf and Muhammad Qamar and in consequence thereof, the appellant and his co-accused were arrested in this case but the testimony of both the aforesaid witnesses has already been discarded being a brunch of lies. At the time of recovery of deceased's dead body , no source of light was available and there was complete darkness. The Investigating Officer got signatures of both the witnesses on blank papers without telling them its purpose. The appellant was not known to the witnesses of ocular account prior to the occurrence and, thus, nothing was left to accept the words of their mouths. So far as the availability of complainant is concerned, it is the prosecution's own case that after getting information in respect of lastly seen the deceased in the company of the appellant and his co-accused, they proceeded to their houses where both the accused persons were not found present, they got lodged the crime report and took the police alongwith them and again visited the houses of both the accused where they were found available. They arrested Muhammad Asif, who made disclosure about his sin but said co-accused Muhammad Asif has already been acquitted in a separate trial being juvenile by disbelieving the same set of witnesses. The crucial point supporting the prosecution version was the recovery of dead body on the disclosure of the appellant being in his exclusive knowledge but the way of his arrest, joint disclosure, jointly leading the police party at the place of occurrence and the joint recovery of dead body in the darkness of night create some sort of doubt that something is being concealed by the Investigating Officer, who had not shown the arrest of co-accused Muhammad Asif and declared him innocent. The afterthought story narrated by the said witnesses was concocted by them to falsely entangle the appellant in the murder in issue. We are unable to find out any iota of the evidence to connect the appellant with the alleged crime. The prosecution has badly failed to make any connection between the appellant and the murder in issue. In the cases of circumstantial evidence, the prosecution is bound to build the chain of circumstances and if any link of the chain is found missing, whole of its case would be destroyed. We are not oblivious of the facts that in the cases of circumstantial evidence, there always remains the chance of fabrication, therefore, the Courts are required to take extra care and caution and examine the case narrowly and if the co-existing circumstances destroy the inference with regard to the accused's guilt, the same cannot be relied upon. Reliance is placed on case titled "Hashim Qasim and another versus The State" (2017 SCMR 986 ) wherein it has been held as under:-- "--circumstantial evidence may sometimes appear to be conclusive but it must always be narrowly examined, if only because this count of evidence may be fabricated in order to cast suspicion on another, therefore, it is all the more necessary before drawing inference, if the accused's guilt from circumstantial evidence to be sure and that there are no other co-existing circumstances, which weaken or destroy the inference then, in that case alone it may be relied upon otherwise, not at all."
In view of the said settled principle of law, we are not in agreement with the observation arrived at by the learned trial Court qua the reasons for conviction and sentence of the appellant on the basis of the available evidence. We have come to the irresistible conclusion that the prosecution has miserably failed to substantiate the charge leveled against the appellants through confidence inspiring evidence.
20. The nutshell of above discussion is that the appeal in hand is allowed , the conviction and sentence of appellant Mureed Hussain are set aside and he is acquitted of the charge by giving the benefit of doubt to him. He is directed to be released from jail forthwith, if not required to be detained in connection with any other case.
21. Murder Reference No.378 of 2015 is answered in the NEGA TIVE and the Death Sentence awarded to appellant Mureed Hussain is not confirmed .