Muhammad Tariq Nadeem, J. Ehsan Ullah (appellant) along with his co-accused Muhammad Anees Arif (since acquitted) was tried by the learned trial court in case FIR No.1028 dated 13-09- 2013, under Sections 302, 364, 201, PPC, registered at Police Station Ghulam Muhammad Abad, District Faisalabad for committing the murder of Bilal Yasin and after conclusion of trial, vide judgment dated 28-02-2018 he was convicted and sentenced as under:- Under section 302 (b) PPC DEATH as Tazir for the murder of Bilal Yaseen (deceased) along with compensation Rs.5,00,000/- to the legal heirs of deceased under section 544-A Cr.P.C and recoverable as arrears of land revenue and in default thereof to further undergo 06 months S.I.
Under section 364 PPC Ten (10) years rigorous imprisonment along with ordered to pay fine of Rs.30,000/-; in default thereof to further undergo 15 days S.I.
Under section 201 PPC Seven (07) years R.I. along with payment of fine of Rs.15000/-/ in default thereof to further undergo S.I. for 15 days.
All the sentences were ordered to run concurrently . Benefit of section 382-B Cr .P.C was extended to the convict.
Appellant has filed titled appeal against his convictions and sentences whereas the learned trial court has sent Murder Reference for confirmation of his death sentence or otherwise, which are being decided through this single judgment.
2. The facts of the case have been stated by Muhammad Yasin complainant (PW3) in his statement before the learned trial court, which is hereby reproduced for narration of the same:- "Stated that 08.9.2013 at about 02.00 p.m. I along with Umardraz, Abdul Ghaf far, Farooq Amjad and my son Bilal Yasin were sitting in Baithak of our house . Bilal Anees (deceased in another murder case) was friend of my son, he along with Ehsan accused present in the court came in our house and said that they have to take Bilal Yasin along with them. I allowed my son to accompan y the accused. Name of Ehsan accused was not known to us at that time.
When my son left the house along with accused he was having cell phones with him. My son did not come back till evening. I called my brother , Umardraz and Abdul Ghaf far and we went to the house of Anees accused at night time as Bilal Anees was son of Anees accused. Anees accused told us at about 09.00/10.00 p.m. that he contacted his son Bilal Anees who said that they were coming back. We went back to our home but my son did not come back. On 13.9.2013 police contacted us on phone and directed us to reach Chak No. 26 Khurd for identification. I and my brother Farooq Amjad went to Chak NO. 26 on motorcycle where accused Ehsan present in the court led to the recovery of dead body of Bilal Yasin from sugarcane crop which was lying in pieces there. Sleepers of my son were lying near the dead body . We identi fied the dead body from teeth of the deceased and sleepers belonging to him. Police prepared of identification mem o of dead body Exh. PB which was signed by me and Farooq Amjad PW.
I submitted application Exh PF for registration of case upon which formal FIR was registered. Complaint Exh. PF bears my signatures. Police also prepare d recovery memo of sleepers P-1/1-2 from the place of recovery of dead body Exh. PC which was attested by me and Farooq Amjad PW. Dead body was taken into possession by the police and was sent for post mortem examination.
On 16.9.2013 we went to police station where we identified motorcycle 70-CC red colour P-2 which was used in the occurrence by the accused. Police prepared identification memo Exh. PD which was signed by me and Farooq Amjad PW .
On 17.9.2013 Muhammad Boota and Abdul Hameed came to me for condolence and told me that Bilal Anees accused was seen by them carrying the last worn clothes of the deceased Bilal Yasin in a shopper and thereafter they did not see said accused in the vicinity . I took them to the police station and I.O. recorded their statements (under objection by learned defence coun sel). On 27.9.2013 we went to police station I. O took out Ehsan accused from the police lock up who led to the recovery of last worn clothes of deceased Bilal Anees trouser gray colour P- 5, shirt Khakhicolour P-6, two cell phones P-3 and P4 wrapped in a shopper by digging out the earth near Madina Sizing Factory , police prepared recovery memo of clothes and mobile phones Exh. PE which was attested by me and Farooq Amjad PW .
3. Contentions heard and record examined.
4. The instance of the indictment, in a manner of speaking, principally pivots upon the conditional proof, which was in the idea of last seen proof, Wajtakkar , recuperation of dead body of the perished on the pointation of appealing party , recuperation of articles having a place with the expired and clinical proof.
5. Facts of the case have already narrated in paragraph No. 2 of this judgment, hence, no need to describe again to avoid duplication. First of all we would like to discuss the last seen evidence. To prove the same, the prosecution has produced two witnesses namely Farooq Amjad (PW2) and Muhammad Yasin complainant (PW3). Farooq Amjad (PW2) is real brother of the complainant, has not been able to give any plausible reasoning qua his presence in the house of complainant. Both the PWs have not made any effort to inform the police till the recovery of dead body of Muhammad Bilal Yasin (since deceased). This conduct of supra mentioned PWs show that they have cooked up a false story , even otherwise, the police has exonerated Muhammad Anees Arif in this case. In the corollary of above facts, we are constrained to hold that the above said PWs are not trustworthy and confidence inspiring. More so, last seen evidence is always considered to be a week type of evidence, unless corroborated some other independent piece of evidence. In this respect, the reference can be made to the case of "Altaf Hussain v . Fakhar Hussain and another" ( 2008 SCMR 1 103).
6. Prosecution has attempted to prove the case through Wajtakkar evidence from the mouth of one Abdul Hameed (PW4) who stated that he along with Muhammad Boota (jettisoned PW) have seen the appellant and Muhammad Bilal Anees coming out from the sugarcane crop on 08.9.2013 and they both were disturbed and in perplexed condition. This PW is neighbour of complainant and he has made dishonest improvement in his statement. In his evidence he has stated that:- "He recorded before the police that Bilal Anees was carrying a shopper , when confronted with Exh. DA it was not so recorded. Similarly he stated that he recorded before the police that he came to know about the murder of Bilal Yasin on 16.9.2013, confronted with Exh. DA where date 16.9.2013 is not mentioned."
Furthermore, Abdul Hameed (PW4) has failed to point out the name of owner of sugarcane crop from where the appellant and his co-accused were comi ng out. It is evident from record that the prosecution has introduced this PW just to strengthen the story . He failed to give reasons qua his presence near the sugarcane crop from where the appellant along with his co-accused Muhammad Bilal Anees were statedly coming out, when he has no agricultural land near the supra mentioned land. The lead of this PW is a question mark in regards to the genuineness of his proof. Wajtakkar proof is constantly viewed as a powerless sort of proof and not trustworthy without some autonomous supportive piece of proof which is a lot of ailing for this situation. A reference in this setting might be made to the cases named as "Muhammad Mansha Kausar versus Muhammad Asghar and others" (2003 SCMR 477), "Mudassar Ali pseudonym Yasri versus The State and others" (2019 P.Cr.L.J.
141) and "Muhammad Farooq versus The State and another" (2020 P .Cr.L.J. 885).
7. As far as recovery of dead body and some articles belonging to the deceased are concerned, we have noted that according to the case of prosecution, Ehsan Ullah appellant was arrested on 13.9.2013 and on the same day while in custody of police got recovered dead body and sleepers of deceased Muhammad Bilal Yasin. It is discernable from the record that the alleged recovery of dead body was effected from a sugarca ne crop bearing Square No. 66, rectangle (Qilla) No. 14 through memo of possession Exh. PB, whereas, Muham mad Aslam Sabri, SI/I.O (PW8) has stated in cross examination that in Exh. PA (scaled site plan regarding place of recovery of dead body of Muhammad Bilal) that there was a crop of Charry and Sugarcane. He added that he had not referenced the part of yields of Charry and Sugarcane was broken. He conceded that he had not referenced the particular regions on which the harvest of Charry and Sugarcane were planted and which region was open spot. Further conceded that he neglected to show the stature of yields. In the above conditions, the recuperatio n of dead body at the pointation of appellant Ehsan Ullah from an open spot, which open to public everywhere, isn't trustworthy . In such like case, the Hon'ble Supreme Court has disbelieved the recovery of dead body . Reliance is placed upon the case titled as "Muhmmad Abid vs. The State" ( PLD 2018 SC 813 ).
8. It is also a case of prosecution that on 27.10.2013 the appellant got recovered clothes of deceased and his two mobile phones from an open place situated at 5 Pullian Chowk near Sidhu Pura Road . The places of above said recoveries are open places and are accessible for all. So far as memo of identification of motorcycle P-2 is concerned that motorcycle was not recovered in this case while the same was allegedly got recovered by the appellant in case FIR No. 1014/2013 registered at Police Station Ghulam Muhammad Abad, District Faisalabad. It is pertinent to mention here that in FIR, no engine number , chasis number , registration number and even colour of motorcycle has not been mentioned. The recovery witnesses are Farooq Amjad (PW2) and Muhammad Yasin (PW3) who are happened to be real broth ers interse . No independent witness has been associated qua the above said recoveries. It is admitted by Muhammad Aslam Sabri, SI/I.O (PW8) that complaint Exh. PF also fails to mention kind and colour of pair of shoe which were worn by the deceased, similarly , this fact has also been admitted by him that in Exh. PF, it has also not been mentioned that pair of shoe were lying near the dead body of the deceased. In the light of above, we feel no hesitation to hold that supra mentioned recoveries are not helpful to the prosecution. Reliance is placed on the case law titled as "Mst. Rukhsana Begum and others versus Sajjad and others" ( 2017 SCMR 596 ).
9. The medical evidence is not synchronized with the ocular account, according to the prosecution story complainant' s son namely Muhammad Bilal Yasin was kidnapped on 08.9.2013, whereas, his dead body was recovered on 13.9.2013 and post mortem was conducted on 14.9.2013 at 09.30 a.m. whereas, Dr. Muhammad Naeem (PW7) has described probable time between death and post mortem about 4 to 8 days. It is pertinent to mention here that at the time of conductin g autopsy , Dr. Muhammad Naeem (PW1) has described in post mortem report qua external examination as under:- "It was a skeletonized dead body of a male having some fleshy area on both legs, both hands and upper part of right chest which had turned, blackened, maggots were present in a stage of larvae. Nails were absent from their beds on both hands and feet. Foul smell was coming from the body . All the bones were present and tendons was attached to their respective bones. Scalp and soft tissue on face was absent. There was no skin or flesh was present in perennial area of the body , however, six swabs were taken from this area 3, for detection of semen and 03, for DNA matching. An underwear was present around the lumber spine area, taken and sent to chemical examiner .
The opinion of Dr. Muhammad Naeem (PW7) is not worthy of reliance regarding the probable time between death and post mortem about 4 to 8 days, because his opinion is against the medical jurisprudence. According to the Parikh' s Textbook of Medical Jurisprudence and Toxicology (5th Edition) :- "In the process of skeletonization, soft tissues disappear first, then articular cartilage, and finally the ligaments. In case of fracture, examination of the callus after dissecting it longitudinally may give some clue as regards time.
Bones are foul smelling and humid in recent cases (about 1-3 months). When they undergo putrefaction, they loss organic matter and, therefore, become light and fragile. Such bones are dark or dark-brown in colour . The time required for putretactive changes to take place in the bones varies from 3 to 10 years, depending on the age of the individual, the nature of the soil and manner of burial."
Similarly , MODI in his Book of Medical Jurisprudence and Toxicology 24th Edition at page No. 349 has given almost same observations about putrefaction in following terms:- "Lungs and heart resist putrefaction for several months...blood vessels particularly aorta mere resist putrefaction even for 14 months".
More so, the Butterworths Medico-Legal Encyclopedia 1997 Edition at page 457 while describing the process of putrefaction of human body noticed as under:- "...the body is partially liquefied in a month and may burst open... The hair and nail will detach about three weeks after death... The skeletonization probably means that the body has been dead for over a year but this may greatly shorten in temperate summer conditions"
In the consequence of above said conversation, we are compelled to hold that as indicated by the grounded clinical law cited over, the revelation of skeletonized body after the pass of 6 days from the date of death was impractical.
A reference in this regard might be made to the instances of "Azeem Khan and another versus Mujahid Khan and others" ( 2016 SCMR 274 ), "Javed Iqbal versus The State" ( PLD 2014 Lahore 62 ).
10 This is an established principle of law and equity that it is better that 100 guilty persons should let off but one innocent person should not suffer. As the preeminent English jurist William Blackstone Wrote "Better that ten guilty persons escape, than that one innocent suffer" . Benjamin Franklin, who was one of the leading figures of early American history , went further arguing "it is better a hundred guilty persons should escape than one innocent person should suffer". Reliance is also placed upon the case law reported as "Ayub Masih vs. The State" (PLD 2002 SC 1048 ) and "Najaf Ali Shah vs. The State" ( 2021 SCMR 736 ).
The responsibility to prove its case beyond any shadow of reasonable doubt squarely lies with the prosecution and if it fails to successfully discharge it, the only result can be the extension of benefit of doubt to the accused person and it is, by now, established proposition that multiple doubts are not required in this regard, even a single circumstance creating doubt in a prudent mind is sufficient and the nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. Reference is made to the cases titled "Azhar Iqbal v . The State" ( 2013 SCMR 383 ) &"Muhammad Akram v . The State" ( 2009 SCMR 230 ).
11. In view of the analysis and combined study of the entire evidence and careful appraisal of the same, we are led to an inescapable conclusion that the prosecution case is full of improbabilities, legal and factual infirmities of fatal nature and is pregnant with bristling doubts of grave nature. Thus, the prosecution has miserably failed to prove its case against the appellant beyond reasonable doubt. Resultantly , we accept appeal filed by Ehsan Ullah appellant, set aside his convictions and sentences recorded by the learned trial court and acquit him of all the charges by extending him the benefit of doubt. The appellant is in jail, he be released from the jail forthwith if not required in any other case and Murder Reference is answered in the NEGA TIVE and the sentence of death of Ehsan Ullah appellant is NOT CONFIRMED .