NASIR ASLAM ZAHID, J.-This judgment will govern Criminal Appeal No.182/L of 1994, filed by Mukhtar Ahmad son of Muhammad Musa against the judgment dated 14-6-1994 of the Additional Sessions Judge, Bahawalnagar, passed in Sessions Case No.21 of 1994, and Jail Criminal Appeal No.191/L of 1994 sent by convict Mukhtar Ahmad from Jail against the same judgment. By the impugned judgment, the trial Court came to the conclusion that the prosecution had established that the appellant kidnapped deceased Salina Bibi, aged about four years, daughter of P.W3 complainant Khadim Hussain, for the purpose of stealing her ornaments and thereby committed the offence under section 369, P.P.C. And then he tried to rape the victim, but, due to undeveloped organs of the victim, penetration did not take place and accordingly the appellant committed the offence under section 18 read with section 10(3) of the ~ f fence of Zina (Enforcement of Hudood) Ordinance, 1979, and also caused the death of the victim through strangulation committing the offence punishable under section 302(b), P.P.C. The trial Court also held that by retaining in his possession the stolen ornaments of the deceased victim, the appellant also committed the offence under section 411, P.P.C. The following sentences were awarded to the appellant:---
(i) Under section 302, P.P.C., sentence of death was awarded;
(ii) under section 18 of the Offence of Zina Ordinance, appellant was sentenced to ten years' R.I. And also ten stripes;
(iii) under section 369, P.P.C. The appellant was sentenced to R.I. For seven years; and
(vi) under section 411, P.P.C. The appellant was sentenced to R.I. For three years.
It was ordered that the sentences of imprisonment under section 18 of the offence of Zina Ordinance and under sections 369 and 411, P.P.C. Shall run
2. We have heard at length the arguments of Mr. Shaikh Ikram-ud-Din. Learned counsel for the appellant, and Mr. Muhammad Anwar Dholan, learned counsel for the State. With the assistance of the learned counsel, we have gone through the record. On the close of the arguments yesterday, by a short order this appeal was allowed and the impugned judgment dated 14-6-1994 of the trial Court set aside and the appellant acquitted of the charges and the appellant directed to be released if not required in any other case. Reasons for our short order are contained in this judgment.
3. On 15-6-1993, complainant Khadim Hussain, father of victim Salma Bibi, lodged a report (F.I.R. 68 of 1993 of Police Station Fort abbas, District Bahawalnagar). According to the F.I.R., the complainant, a labourer residing at Diggi Mohallah, Fort abbas, alleged that two days earlier (i.e. On 13-6-1993) at about 4-00 p.m. His daughter Salma Bibi went out of the house for playing, but did not return till the evening, which caused concern to the family. According to the complainant, at the time when the victim left the house, she was wearing one small golden Bali in one ear and two sliver Pazaibs on her feet. The search commenced for the victim. The complainant was accompanied in the search by his father-in-law Jamsher A.I (not examined) and Bahadar A.I son of Sher Khan. The search continued for two days and on the date of making report i.e. 15-6-1993, the search party was met by P.W.5 Pir Bakhsh and P.W.6 Ranjha who informed that they had seen the accused going alongwith the victim towards sand dunes ahead of the graveyard on the day when the victim was found to be missing. According to the F.I.R., the two witnesses also informed that the accused had told them on enquiry that the father of the victim was collecting goods in the sand dunes and the accused was taking the victim to her father at the request of her mother. On getting this information, the search party directed their search towards the sand dunes and found the dead body of the deceased partly buried in sand ahead of the graveyard. The body was found without the ornaments. According to the complainant, the accused murdered the victim for stealing the ornaments and that he had come to the police station for lodging the report leaving Jamsher and Bahadar A.I with the dead body. F.I.R. (Exh.PA) was recorded by P.W.7, A.S.I. Riaz Ahmad, who was posted then at Police Station Fort abbas. According to P.W.7, on the same day i.e. .15-6-1993, the witness alongwith other police officials reached at the spot, recorded the statements of the P.Ws.
Under section 161, Cr.P.C., inspected the spot, scribed the inquest report (Exh.PE) and the injury statement (Exh.PE/1) and sent the dead body of the deceased, Salma Bibi, to the Hospital. He also prepared a rough site plan (Exh.PF). On 16-6-1993, post-mortem examination was conducted by P.W.8. Dr. A.I Asghar Ejaz, Medical Officer, Civil Hospital, Fort abbas, who handed over the clothes of the deceased i.e. Shalwar (P-1), shirt (P-2), a cloth string (P-3), a sealed envelope and two sealed vials containing swa bs which P.W.7 took into possession vide memo. Exh.PB. He also recorded the supplementary statements of Jamsher A.I and Bahadar A.I. Thereafter, he handed over the investigation to P.W.9 Syed A.I Raza, S.H.O. P.S. Fort abbas. On 17-6-1993, P.W.9, S.H.O. Syed A.I Raza took over the investigation of the accused. He arrested the accused, Mukhtar Ahmad, on 23-6-1993.
According to the S.H.O., on 29-6-1993 the accused led to the recovery of one golden ear-ring (P-4) and two silver Pazaibs (P-5/1-2) from his house situated in Diggi Mohallah, Fort abbas, where he had buried the articles in his house. He also .Recorded the statements of the witnesses under section 161, Cr.P.C. And prepared memos. And, after investigation, interim challan was submitted by P.W.9 Syed A.I Raza on 30-6-1993 and final challan on 17-7-1993 on receipt of the report of the Chemical Examiner and the final report of the Medical Officer.
4. The charge was framed by the trial Court against the accused on 2-3-1994 to which the accused pleaded not guilty and claimed trial. During the trial, prosecution produced nine witnesses. P.W.1 Head Constable Abdul Jabbar, Moharru, at Police Station Fort abbas, had received one sealed envelope from A.S.I. Riaz Ahmad for sending the same to the office of the Chemical Examiner which envelope was given by the witness to P.W.2 Constable Nasir A.I on 18-6-1993. According to P.W.2 Constable Nasir A.I, on 18-6-1993 he had received the sealed envelope which was delivered by him to the Office of the Chemical Examiner. P.W.3 is complainant Khadim Hussain, father of the victim.
He narrated the prosecution version about the missing of his daughter Salma Bibi and the search made for her. He deposed about the information given two days later by Jamsher A.I and P.W.4 Bahadar A.I about their meeting with the accused on the day the victim went out of her house.
Khadim Hussain gave evidence about the ornaments worn by his deceased daughter. He also deposed that in his presence the accused led to the recovery of the ornaments. In his cross- examination, he stated that P.W.4 Bahadar A.I was his real uncle and that P.W.6 Ranjha was not related to him although he was from his `Biradri'. He also stated that Jamsher A.I was his father-in- law. He informed about repeated announcements on speakers of different mosques in the area about disappearance of the child. According to Khadim Hussain, the announcement of missing of his daughter was made from almost all the mosques of the town and that the announcements were also made in different villages. He deposed in his cross-examination that the dead body of his daughter was partly buried in the sand and it was in "correct position". He further stated that P.W.5 Pir Bakhsh and P.W.6 Ranjha were on visiting terms to his house and that they had never visited his house. P.W.4 Bahadar A.I, maternal uncle of the complainant, a member of the search party, gave evidence about the search made for two days for the missing girl and then their meeting with P.W. Pir Bakhsh and P.W. Ranjha and their information about the missing girl going with the accused on 13-6-1993 beyond the graveyard. He also gave evidence that during his presence the accused led to the recovery of the missing ornaments. In his cross-examination this witness stated that there was `Abadi' at the place of occurrence and it was a deserted place.
According to the witness, the dead body of the girl was partly buried in the sand and partly open and the condition of the dead body had not deteriorated. P.W.5 Pir Bakhsh and P.W.6 Ranjha gave evidence about the seeing the accused going alongwith the victim and that he had informed the witnesses that he was taking the girl to her father in the sand dunes at the request of her mother. In his cross-examination, P.W.5 Pir Bakhsh stated that he was resident of old Phoolrra which was at a distance of about 2 to 2-1/2 miles from Diggi Mohallah and that Ranjha was resident of Chak No.254/HL which was at a distance of about 5/6 miles from Diggi Mohallah. According to Pir Bakhsh, P.W. Ranjha had come to him at Phoolrra and then both of them had gone to Fort abbas. He stated that he visits the house of complainant Khadim Hussain occasionally and that deceased Salma Bibi was known to him for the last 2/3 years and that accused Mukhtar Ahmad also known to him for the last 5/6 years. According to Pir Bakhsh, he and Ranjha had purchased different articles from Chowk Phohara in Fort abbas. According to him, on the day Salma Bibi was missing, no announcement was made in the mosque of his village. According to the witness, on the day of the recovery of the dead body of the victim, Ranjha had again come to him and then both the witnesses and Ranjha had gone to Fort abbas Town and they met the complainant and other witnesses near the graveyard adjacent to the bazar and after informing them of their meeting with the accused two days earlier, the two witnesses came to Fort abbas Town and remained in the grain market for about three hours and when they left the grain market they heard about the recovery of the dead body on which they straight went to the place where the dead body was found. According to Pir Bakhsh dead body of the child was lifted by the police after their arrival and that one arm of the deceased girl was missing and the hair of the girl were also missing.
P.W.6 Ranjha gave his version of his going alongwith Pir Bakhsh to Fort abbas Town, meeting accused Mukhtar Ahmad alongwith the victim and then two days later meeting the search party and informing them about the meeting with the accused. In his cross-examination, he stated that when the incident had taken place it was hot season and there was the possibility of a person dying on account of thirst if he lost his way in the sand dunes. According to Ranjha, on the day they met the accused, they purchased their necessities from the shop of one A.I Sher Tailee and in the evening returned home and on the day of the recovery of the dead body of the deceased after meeting the search party, Ranjha and Pir Bakhsh went to the shop of a carpenter where Ranjha purchased a cot and proceeded towards their houses before sunset when they heard about the recovery of the dead body of Salma Bibi. According to the witness, they left the cot there and went to the place where the dead body was found where they reached before sunset and the police party reached the spot and had lifted the body and placed it on the cot before they arrived.
According to Ranjha, he and Pir Bakhsh went to the hospital where the dead body was brought and both of them stayed at hospital for the supervision of the dead body. He stated in his cross- examination that his wife and wife of complainant Khadim Hussain were sisters.
5. P.W.7 is A.S.I. Riaz Ahmad of P.S. Fort abbas, who had recorded the F.I.R. And had also partly investigated the case on 15-6-1993 and 16-6-1993. On 17-6-1993, P.W.9 S.H.O. Syed A.I Raza took over investigation from him. According to Riaz Ahmad, all the P.Ws. And the complainant went to the hospital with the dead body.
P.W.9 is S.H.O. Syed A.I Raza who, as observed earlier, took over investigation of the case from P.W.7 A.S.I. Riaz Ahmad on 17-6-1993 and arrested the accused on 23-6-1993 and recovered the ornaments at the pointation of the accused on 29-6-1993. In his cross-examination, he stated that he did not get the accused medically examined for ascertaining his age. He denied the suggestion that the age of the accused was 11/12 years. According to witness, the accused seemed to be 15/16 years old. He stated that he had not taken into possession Shalwar of the deceased girl and as such the same was not sent by him for chemical analysis.
P.W.8 is Dr. A.I Asghar Ijaz, Medical Officer, THQ Hospital, Fort abbas. He had performed the post- mortem examination on the dead body of Salina Bibi on 16-6-1993 at 8-00 a.m. He has stated in his evidence as follows:-- "On 16-6-1993 at 8-00 a.m. I conducted the post-mortem examination on the dead body of Mst.
Salina Bibi deceased aged about 4 years who was brought by Muhammad Boota 941/C. The dead body was identified by Jamsher A.I son of Pathana and Bahadar A.I son of Sher Muhammad, both Silla by case and residents of Diggi Mohallah; Fort abbas. There were two clothes on the body i.e. Shalwar and Qameez, with print of red, green and black colour. There was blue coloured cloth- string in the neck. It was very tied and encircling the neck. Muscles and soft tissues were not present in the neck, head and face. Hyoid bone was also missing. Body was putrified and swollen.
Almost all the skin and soft tissues were looking bluish. Hair were not present on the head. Muscles and soft tissues, eyes, nose, tongue were not present in the body. Right arm was also missing and it appeared that it has been cut by some wild animal (dog). At the point separation the edges were blunt and rough and irreparable.
OPINION xxx By the learned defence counsel: The dead body was brought on 15-6-1993 in the evening. I cannot tell the exact time. Normally we do not give the time of arrival of the dead body. The police had also sought opinion about the commission of offence of Zina with the deceased. In strangulation the fracture of hyoid bone is necessary. There is possibility of bleeding in the nose, ear and mouth in case of death by strangulation. Usually there is ligature mark but in this case soft tissues were not present, due to putrifaction of body. Due to absence of soft tissues around the neck, there was no mark visible caused by blue coloured cloth string. It is correct that externally there were no symptoms of cause of death by strangulation. It is incorrect that internal organs were not present or putrified. It is incorrect to suggest that I gave my opinion about the cause of death only in the light of inquest report submitted by the police."
6. There is no eye-witness in this case. The appellant had not confessed to the crime. There is no extra-judicial confession. There are three pieces of evidence on which the prosecution rested its case, namely, the "last seen" evidence provided by P.W.5 Pir Bakhsh and P.W.6 Ranjha; recovery of the golden `Bali' and silver `Pazaibs' from the house of the appellant at his pointation and the medical evidence coupled with the report of the Chemical Examiner regarding presence of semen on the two external swa bs. The trial Court believing the aforesaid pieces of circumstantial evidence found the appellant guilty of all the charges, convicted and sentenced him as aforesaid.
7. The trial Court believed the evidence of P.W.5 Pir Bakhsh and P.W.6 Ranjha and the recoveries of the ornaments from the house of the accused. The trial Court relied upon the report of the Medical Officer that the death had occurred due to strangulation. The trial Court was of the view that there was no motive for false implication of the accused and no suggestion was made to the prosecution witnesses regarding false implication.
8. In support of the appeal learned counsel for the appellant had advanced the following propositions:---
(a) No evidence has been led by the prosecution regarding the age of the accused and he was also not examined for determining his potency. Learned counsel referred to the charge framed by the trial Court on 2-3-1994 in which there is a blank after the word "aged". In the statement of the appellant recorded under section 342, Cr.P.C. Also, it was pointed out by the learned counsel for the appellant, after the word "aged", there is a blank. According to learned counsel for the appellant, in this case, where, admittedly, the appellant was a young person, evidence should have been led as regards his age and potency.
(b) The second contention of learned counsel was that the "last seen" evidence given by Pir Bakhsh and Ranjha is not reliable. According to learned counsel, both the witnesses are related to the complainant and interested parties and their evidence is full of infirmities, contradictions and deficiencies. According to learned counsel, on going through their evidence it would appear that their version of having seen the accused on 13-6-1993 is not worth reliance.
(c) From the evidence of P.W.3 complainant Khadim Hussain and P.W.4 Bahadar A.I it would follow that they had not discovered the dead body and their evidence does not inspire confidence.
(d) The evidence adduced by the prosecution does not establish the cause of the death of the victim. According to learned counsel for the appellant, the medical evidence does not establish that the death of the victim was the result of strangulation, as is the ease of the prosecution.
(e) The medical evidence does not establish that the victim had been subjected to rape or even attempted rape.
(f) Evidence of recoveries is doubtful and no evidence was led for identification of the ornaments.
9. On the other hand, Mr. Muhammad Anwar Dholan, learned counsel for the State submitted that the prosecution had established its case through the aforesaid three pieces of evidence. It was vehemently argued on behalf of the State that the defence had not been able to give any motive of reason for false implication and no suggestion was made in the cross-examination of the prosecution witnesses in this regard.
10. As observed earlier, this is a case of unseen crime. There is no ocular testimony. The entire case of the prosecution depends on circumstantial evidence. We propose to consider each piece of evidence in order to reach the conclusion whether the trial Court had been right in convicting the appellant. Taking the medical evidence first, we are of the view that such evidence does not support the prosecution version that the deceased child had died due to strangulation. In fact, from medical evidence it follows that the cause of death had not been established. The evidence given by P.W.8 Dr. A.I Asghar Ijaz has been reproduced earlier in this judgment. The body of the child apparently had been lying in the wilderness for about two days and had been subjected to attacks by wild animals, perhaps dogs, as mentioned by the doctor. According to the evidence of doctor A.I Asghar Ijaz, muscles and soft tissues were not present in the neck, head and face and the hyoid bone was also missing; hairs were not present on the head; muscles and soft tissues, and eyes, nose, tongue were not present in the body; right arm was also missing and "it appeared that it had been cut by some wild animal - dog". Though at one point the doctor says that according to his opinion the cause of death was strangulation caused by tied blue coloured cloth around the, neck preventing air entry into the lungs, but in cross-examination he admitted by stating that externally there were no symptoms of cause of death by strangulation. He also stated that in strangulation the fracture of hyoid bone was necessary, whereas earlier in his examination-in-chief he had stated that hyoid bone was also missing. As regards the question of rape, the doctor had stated that there was no injury on the external genital organs and there was no tear in the vagina or clitoris. He first gave the opinion after medical examination that act of sexual intercourse did not seem to have been done. However, two internal and external swabs were taken and, according to the Chemical Examiner's report, external vaginal swabs were stained with semen while internal swa bs were not stained with semen. When there was no injury on the body external or internal organs of the deceased and there was no tear in vaginal or clitoris and the doctor's opinion was that sexual intercourse had not been done with the deceased, in our view, merely on the report of the Chemical Examiner that the two external swabs were stained with semen it was unsafe to reach the conclusion that the deceased had been subjected to rape or attempted rape in the absence of any other evidence in that regard. There is also the question of age, which in this case has assumed importance. The medical examination of the appellant had not been conducted to determine his potency. His age has been left blank in the charge framed by the trial Court and also in the statement recorded under section 342, Cr.P.C. A suggestion was also put in the cross- examination of P.W.9 S.H.O. Syed A.I Raza that the appellant was 11/12 years of age, which was denied and according to the S.H.O. The accused was 15/16 years of age. The Investigating Agency and the prosecution, in the circumstances of this case where accused was admittedly a person of young age, should have ensured that evidence regarding his age and capacity to commit sexual intercourse comes on record. In our view, on the state of the evidence on record, it had not been established beyond reasonable doubt that the deceased had been subjected to rape or attempted rape.
11. As regards "last seen" evidence, we have noted the infirmities and contradictions pointed out by learned counsel for the appellant while going through the evidence of P.W.5 Pir Bakhsh and P.W.
Ranjha. One very important contradiction in the evidence of P.W.3 Khadim Hussain and P.W.6 Ranjha that has been noted by us is that, according to complainant Khadim Hussain, Ranjha was not related to Khadim Hussain whereas Ranjha in his evidence has stated that Khadim Hussain was his `Hamzulf` i.e. Their wives were sisters. According to Khadim Hussain, Ranjha had never visited his house. It is unbelievable, without there being any explanation on record, that Ranjha had never visited the house of Khadim Hussain though both were so closely related inasmuch as their wives were 'stars. Then Khadim Hussain has also stated that Pir Bakhsh had never visited his house, whereas Pir Bakhsh in his testimony stated that he had occasionally visited the house of Khadim Hussain and that he had also known deceased Salina Bibi for the last 2/3 years. This aspect assumed importance because according to Pir Bakhsh and Ranjha they had seen the accused taking away the small daughter aged four years of the complainant towards the wilderness and they were not alarmed though he was not related to the complainant. Ranjha is the `Hamzulf of Khadim Hussain. If an unconcerned person is taking away a small child who is the niece of P.W.6 Ranjha, the natural reaction would be that Ranjha should be concerned. But, according to the evidence of both Pir Bakhsh and Ranjha, they do not mention this fact to any one for two days when frantic search is going on in search of the missing girl and announcements are being made repeatedly from all mosques in the town and nearby villages about the disappearance of the child.
P.W.5 and P.W.6 are also chance witnesses as they do not reside in the area. One witness resides two miles away in a village and the other five miles away in another village. There are also contradictions between the evidence of the two witnesses as to where they had gone after meeting the accused and the search party and about the lifting of the dead body from the scene of the occurrence. On close scrutiny of the evidence of P.W.5 Pir Bakhsh and P.W.6 Ranjha as well as of P.W.3 Khadim Hussain, we are of the view that the evidence of P.W.5 and P.W.6 of having seen the deceased last in the company of the accused is not free from infirmities.
12. "Last seen" evidence is a weak piece of circumstantial evidence and for placing reliance on such evidence it should be confidence inspiring and free from any major infirmity or contradiction. Then no conviction can be based merely on the victim having been last seen with the accused. There should be other evidence completing the link leading to the conclusion that the accused had committed the murder. Other evidence in our view is lacking in this case. We have already noted that the medical evidence does not support the prosecution case regarding death of the deceased by strangulation and about rape or attempted rape having been committed upon the deceased. Recoveries are also not reliable as found later in this judgment.
13. There are also discrepancies in the evidence of P.W.3 Khadim Hussain and P.W.4 Bahadar A.I who have stated in their evidence that after coming to know about the meeting of Pir Bakhsh and Ranjha with the accused two days earlier, they went towards the place where the dead body was found and actually saw the dead body half buried in the sand. According to the medical evidence, the dead body of the child was in a state of decomposition and several parts of the body were missing, including one arm. The evidence of the doctor has been reproduced hereinabove.
However, according to P.W.3 Khadim Hussain and according to P.W.4 Bahadar A.I. The body of the deceased child was lying in the wilderness subject to attacks by the wild animals and, in the light of the medical evidence, the testimony of complainant Khadim Hussain and Bahadar A.I that when they discovered the body its condition was all right and had not deteriorated is strange and difficult to believe. Then inquest report shows that the dead body was brought to the hospital in the evening. It was kept in the hospital the whole night and the post-mortem examination was conducted the next day on 16-6--1993. The contention of learned counsel for the appellant that the aforesaid circumstances lend support to the fact that perhaps this was a case where the dead body had been recovered not by the complainant and Bahadar A.I, but information was received by the police from some other source that body was lying in the wilderness and the body was brought in the hospital where post --mortem was conducted, is not without force.
14. There is also evidence of recoveries of the ornaments. The recoveries are also not without doubt.
The recovered ornaments were not described by the complainant as the same which were worn by the deceased when she left the house. Even otherwise where the "last seen" evidence and the medical evidence does not support the prosecution case beyond reasonable doubt, it would be unsafe to base the conviction of the appellant on such recoveries.
15. Before parting with this judgment we may refer to the submission made by the State that no evidence or reason had been given or brought on record for false implication of the appellant. The law is clear on this point. The prosecution has to establish its case beyond reasonable doubt against the accused and, in case the prosecution fails in doing so, the failure of the defence to advance a motive for false implication or advancing an absurd motive cannot be made the basis for the conviction of the accused. As noted in this case, there is only circumstantial evidence and if all the pieces of evidence are believed the same do not exclude all hypothesis of the innocence of the appellant.
16. For the aforesaid reasons, we are of the view that the prosecution had not established its case beyond reasonable doubt against the appellant. Perhaps this was a case of suspicion, but, on suspicion alone, an accused cannot be convicted. As a result, Criminal Appeal No.182/L of 1994 and also Jail Criminal Appeal No.191 of 1994 are, therefore, allowed, and the appellant acquitted of the charge. As a consequence of acceptance of this appeal the IC, Murder Reference No.6/L of 1994 is not confirmed.