This Criminal Appeal No, 43 of 2016 is directed against judgment dated 23.12.2015 passed by learned Additional Sessions Judge Muzaf fargarh, whereby appellant Tanveer Hussain was convicted under Section 302(b), PPC and sentenced to imprisonment for life with payment of compensation to the tune of Rs,3,00,000/- to the legal heirs of deceased under Section 544-A, Cr.P.C., in default whereof, to further undergo six months' SI, Appellant was given benefit under Section 382-B, Cr.P.C. Complainant of this case namely Abdul Hameed died prior to conclusion of trial, as such his father Khuda Bakhsh has filed Criminal Revision No, 52 of 2016 seeking enhancement of sentence of appellant. Both the matters arising out of same judgment dated 23.12.20 will be decided through this consolidated judgment.
2. Appellant was tried in case FIR No, 365/201 1 dated 01.08.201 1 for the offence under Section 302, PPC registered at Police Station Khangarh District Muzaf fargarh. Said FIR was registered on the basis of statement got recorded by Abdul Hameed, alleging therein that his son Zeeshan Majeed aged about 71/2 years went missing since 03:00 p.m. on 28.07.201 1. Efforts including announcements in loudspe akers of Mosques as well as publication in newspaper were made for his search but all in vain. On 01.08.201 1 at about 07:00 a.m., complainant was informed by Tanveer Hussain (appellant) that a human skull was seen by him in sugarcane crop of Muhammad Ijaz, whereupon complainant alongwith Ghulam Fareed (PW-4) and Muhammad Ibrahim (PW-5) went in said sugarcane crop and found dead body of his son Zeeshan Majeed. Head of the dead body was found separate from rest of the body whereas clothes were also lying separately .
3. Statement of complainant was recorded by Muhammad Afzal SI (PW-9), who investigated the case and submitted report under-Section 173, Cr.P.C. Appellant was charge sheeted, who pleaded not guilty and claimed trial. Prosecution examined ten witnesses at trial. Thereafter statement of accused was recorded under Section 342, Cr.P.C., wherein he pleaded innoc ence. However , he did not opt for any evidence in his defence. On conclusion of trial, appellant was convicted and sentenced as mentioned in open ing paragraph of this judgment, hence this criminal appeal as well as revision.
4. I have heard learned counsel for the parties as well as learned DDPP and gone through the record with their assistance.
5. In the FIR, complainant did not express suspicion against anybody as the occurrence was unwitnessed.
Petitioner was later on implicated in this case. There is no direct evidence of the occurrence. In order to prove its case, prosecution produced following evidence: i. Last Seen evidence furnished by PW -6 Muhammad Ramzan ii. Extra Judicial confession, allegedly made by appellant before Saeed Ahmad PW -8 and W ahid Bakhsh Medical evidence furnish-- by PW-7 Dr. Tahir Naseem who conducted post-mortem examination on the dead body alongwith reports of Chemical Examiner as v ell as Histopathologist. iv. Recoveries, consisting of 'recovery of dead body alongwith last worn clothes of the deceased, weapon of offence dagger P-4 and a piece of rope P-3.
6. I would like to discuss each piece of evidence separately in order to ascertain its evidentiary value. As per FIR, complainant's son Zeeshan Hameed aged about 7-1/2 years went out of home on 28.07.201 1 at 03:00 p.m. for the reason that complainant had slapped him for quarrelling with other children. He did not return home and could not be traced despite serious efforts made by complainant and others. Dead body of said boy was recovered from a sugarcane crop on 01.08.201 1. PW-6 Muhammad Ramzan was introduced by prosecution as witness of last seen.
His statement was recorded by trial Court on 07.04.2015, In his examination-in-chief, PW-6 deposed that he had seen the deceased in company of appellant at about 04:00 p.m. about 33/4 years ago while sitting under a dates tree on the bridge of watercourse. He suspected that appellant had murdered Zeeshan Majeed. PW-6 in his cross- examination stated that he was paternal cousin of complainant. Despite his such close relationship with complainant, there is nothing on record to show that PW-6 inquired from the deceased as to reason of his sitting with appellant at such a isolated place. As such, conduct of PW-6 is not in consonance with the natural behavior which ought to be of such a closely related person in the given situation. Important to note here is that according to FIR, complainant made every effort for searching his missing son. For that purpose, he made announcements in the loudspeakers of Mosques and also got published in newspapers. Despite that, PW-6 remained unaware of missing of complainant's son rather as per cross-examination of PW-4 Ghulam Fareed, real brother of complainant, they informed all other relatives except PW-6. Even after discovery of dead body on 01.08.201 1, no such information of last seen was immediately conveyed by PW-6 to the complainant. His statement was recorded by investigation officer on 04.08.201 1. In such backdrop, evidence of last seen, on the fact of it, appears to be concocted and after-thought in order to strengthen the prosecution case against appellant. As such, testimony of PW-6 is not worth reliance.
7. Another piece of evidence introduced by prosecution is extra judicial confession. FIR sans name of any culprit.
Prosecution case is that appellant made confession of his guilt before PW-8 Saeed Ahmad and Wahid Bakhsh.
Said Wahid Bakhsh was not produced in the witness-box to corroborate statement of PW-8. As per statement of PW-8, Wahid Bakhsh was not witness of the alleged extra judicial confession rather he was told by PW-8. During cross-examination PW8 stated that when he told Wahid Bakhsh about extra judicial confession made by appellant, he told that the appellant had already approached him half an hour ago. However , statement of PW-8 was silent as to further detail about approaching the accused to said Wahid Bakhsh. Due to non-examining of Wahid Bakhsh, this aspect of statement of PW-8 could not be substantiated. Saeed Ahmad PW-8 in his examination-in-chief did not disclose the date when appellant allegedly made extra judicial confession before him.
However , in cross-examination he explained that the accused approached him after eight days of recovery of dead body . Important to note here is that PW-8 was though relative of the complainan t, however , he was working as labourer on a cattle-shed, as such was not in a position to influence the complaina nt for pardoning the accused, as such there could have been no reason for the accused to approach such a person who was not in a position to help him. Ordinarily , a culprit tries to conceal his sin and there are unusual circumstances when some person is forced by his conscious to get pardon of his crime from the aggrieved persons. In the case in hand, no such special circumstances have been surfaced which may suggest that the appellant was forced by his conscious, leading him to get pardon from the complainant through PW-8, a person who was not such an influential who could help him.
Important to note here is that PW-8 was least interested in the matter as he stated in cross-examination that he did not go for searching complainant's son when he was missing. Of much relevance is deposition of PW-8 that he did not join investigation and his statement was not recorded by the Investigation Officer. This sole part of deposition of PW-8 has made remarkable dent in prosecution's case. Extra judicial confession is a weak type of evidence which in usual course of affairs is created by police in the cases where no direct evidence is available. In such backdrop, uncorroborated statement of PW -8 which also contains above discussed discrepancies, cannot be relied upon.
8. Another type of confession of the appel lant, according to PW-4 Ghulam Fareed and PW-5 Muhammad Ibrahim is before police in their presence during investigation. Deposition of PW-4 and PW-5 on this point is not in consonance with each other . According to PW-4, during investigation appellant disclosed that the deceased was playing in their street when he enticed and took him to jantar jawar crop. On the other hand, according to PW-5 appellant disclosed that deceased was sitting in the street and he enticed him for eating dates. PW-5 stated that it was disclosure of appellant that on making hue and cry by the deceased, he took a rope from his pocket, whereas PW-4 did not state about availability of any rope in pocket of the appellant. Even otherwise, confession of an accused before police is of less importance which cannot be equalized with direct evidence as proof of a fact.
9. Medical evidence was furnished by PW-7 Dr. Tahir Naseem, who conducted post-mortem examination on the dead body . Initially he did not opine any cause of death. However , while appearing in the witness-box before trial Court, PW-7 opined that ante-mortem injury to cervical vertebra was sufficient to cause death in ordinary course of nature. As discussed in the preceding paragraph, there is no direct evidence of murder and evidence of last seen as well as extra judicial confession is not worthy of reliance, in such backdrop medical evidence which is corroboratory in nature, is of no help to prosecution.
10. Important to note here is that according to prosecution's case appellant disclosed that he firstly committed sodomy with the deceased and then murdered him. During investigation anal swabs of the deceased were sent to office of Chemical Examiner . As per report Ex.P-M, the swabs were not stained with semen. Therefore, allegation of sodomy with deceased does not find corroboration from report of Chemical Examiner .
11. During investigation appellant allegedly got recovered a rope P-3 with which he allegedly strangulated the deceased. He also got recovered a dagger P-4 with which he separated head of the deceased. As discussed in preceding paragraph, last seen as well as extra judicial confession are not reliable pieces of evidence in this case therefore, recoveries which are corroboratory in nature, are of no help to prosecution's case, as such merits of it need not be discussed.
12. On re-appraisal of evidence, in my view, prosecution had failed to prove charge against appellant, as such findings recorded by learned trial Court are not sustainable. Resultantly , Criminal Appeal No, 43 of 2016 is allowed and conviction and sentence of the appellant awarded by learned trial Court through impugned judgment are set aside. Appellant Tanveer Hussain is acqu itted of the charge extending benefit of doubt to him. He is in jail. He be released forthwith if not required in any other case.
13. For the reasons recorded above, Criminal Revision No, 52 of 2016 is dismissed.