' SALEEM AKHTAR, J.---The petitioner seeks leave to appeal against the judgment of the learned Judges of the High Court, whereby his conviction by the trial Court under section 302/377, P.P.C.
Sentencing him to death with a fine of Rs,5,000 or in default 2 years' R.I., and further convicting him under section 377 and sentencing him to 10 years' R.I., with fine of Rs,5,000 or in default of payment to suffer 2 years' R.I., was upheld and the appeal filed by him was dismissed. The death sentence was confirmed.
2. Briefly the facts as stated in the F.I.R. Are that complainant Muhammad Ibrahim resident of Miranpur had two sons namely, Bilal Ahmed and Sajjad Ahmed. They were admitted for studying Holy Qur'an in Jamia Masjid Bahadur Khan, Ali Pur. As they had not visited their house for sometime, on 17-5-1990 the complainant alongwith Haji Ahmed Din son of Nasruddin and Haji Abdul Karim son of Haji Muhammad Ameen went to All Pur to see the children. When they reached Jamia Masjid they found their younger son Sajjad Ahmed present there who told that Bilal Ahmed had gone to beg and collect food from the Mohaliah. All of them waited there up to 11 p.m. But he did not return.
Sajjad Ahmed told them that often students go and stay at the house of Qari Talib Hussain and it is possible that his brother may have gone there. All of them alongwith Sajjad Ahmed went to the house of Talib Hussain and knocked at the door. Qari Talib Hussain came out in disturbed and perplexed condition. There were blood stains on his clothes as well. Immediately on seeing them he ran away. They went inside the house and saw Bilal Ahmed lying dead on the floor with handkerchief around his neck. Blood was oozing out of his nose and mouth. His hands were tied behind his head with string. It was alleged that Qari Talib Hussain had killed him with intention to Commit sodomy. It was also stated that earlier complainant's son had told that Qari Talib Hussain had intentions to commit sodomy with him. The petitioner was arrested on 22nd May, 1990 who led to the recovery of blood-stained Shalwar and shirt from the house. This was witnessed by Haji Ahmed Din and Abdul Karim. The dead body was sent for post-mortem examination and the doctor found the following injuries:- "Both hands were clunched and tied above the head with Azarband. The neck was constricted with a piece of cloth at the level of thyroid cartilage:
(1) An abrasion of 1/8 c.m. x 1/8 c.m. On the back and base of right middle fingure.
(2) An abrasion of 1/8 c.m. x 1/8 c.m. On the inner side of the right index fingure close to the base.
(3) A contusion of 2 c.m. x 2-1/4 c.m. In the region of opigastrium.
(4) An abrasion of 1/2 c.m. x 1/2 c.m. In between the left index and middle fingure.
(5) An abrasion of 1/2 c.m. x 1/2 c.m. On the inner and medial side of left middle fingure. There was a mark of Azarband on the left fore-arm bear the elbow joint encircling the inner back and front of the forearm.
(6) There was a mark of Azarband on the back of right fore-arm encircling front side and back of the forearm.
(7) On examination of neck:
(a) There was a three cresentering abrasions of 1 c.m. x 1/2 c.m. On the left side of the neck about 3 c.m. Away from the thyroid cartilage.
(b) There were three cresentence abrasions 1 c.m. x 1/2 c.m. On the left side of neck near the injury No,1 and about 2 c.m. Away from the thyroid cartilage.
(c) Two scratches 1/2 c.m. x 1/2 c.m. On the right side of the neck about 2 c.m. Away from the thyroid cartilage.
(d) A scratch of 1/2 c.m. x 1/8 c.m. On the right side of neck about 6 c.m. Away from the thyroid cartilage."
' The doctor further reported that penile and rectal swabs were sent to the Chemical Examiner, Multan for detection of any semen. After receiving the report he gave opinion that carnal intercourse had taken place upon the deceased and the death was caused because of throttling.
The doctor had also examined the petitioner and found him capable of sexual intercourse.
5. In order to prove the case, prosecution examined, apart from other witnesses, Dr. Ahmed Sajjad, Muhammad Ibrahim P.W.3 complainant, Haji Ahmed Din P.W.4, Sajjad Ahmed P.W.5. In his statement under section 342, Cr.P.C., the petitioner denied the allegations against him. He denied that the house from where the dead body was recovered was owned or possessed by him. He also denied that the complainant alongwith Adbul Karim, Haji Ahmed and Sajjad Ahmed went to his house and knocked at the door of the house. The recovery was also denied. He denied that he had been a teacher in Madressa and that P.Ws. Sajjad Ahmed, Muhammad Ibrahim, Abdul Karim and Haji Ahmed Din know him. He further stated that it was rumoured that his brother Ghulam Muhammad or some other teacher of Madressa had committed the murder of the deceased and he has falsely been involved in this case and has been made a scapegoat because if real culprit involved in the case would have been named that would have brought bad name to Madressa resulting in stoppage of the aid by the Government to the Madressa. He had accused the local Moulvies as the real culprits, who had been let off and he had 'been involved falsely. He examined Muhammad Akhtar Head Constable as D.W.1. He also produced documents to prove that Government aid from Zakat fund was given to the Madressa and he was not a teacher on the rolls of the Madressa.
3. The learned counsel for the petitioner contended that the High Court has misread and misappreciated the evidence and was all along under the impression that it was a case of direct ocular evidence whereas from the evidence itself it is clear that there was no eye-witness of the incident. In this regard the learned counsel has referred to para. 5 of the impugned judgment where it has been observed that "prosecution in order to establish its case has mainly relied upon ocular account furnished by Muhammad Ibrahim, Haji Ahmed Din and Sajjad Ahmed". While appraising the statement of Sajjad Ahmed, a child of 9 or 10 years it was observed that "Going through his statement we feel that he alone can safely be relied upon. So far other eyewitnesses are concerned in spite of our best efforts we have not been able to find any reason which could prompt them to falsely implicate the appellant". Prior to such observations, while dealing with the contention of the learned counsel for the petitioner in the High Court that the case against the petitioner was not proved and the presence of the eye-witnesses were highly doubtful, P.Ws.3, 4 and 5 seem to have been described as eye-witnesses. It is true that they had not seen the act of killing or sodomy committed upon the child but their statement is very clear that when they knocked at the door, the petitioner came out in a perplexed state with blood-stained clothes and ran away. They entered the house and saw Bilal Ahmed lying dead in the condition as described above. This part of the incident narrated by them was seen and witnessed by each of the three P.Ws. The contention raised by the learned counsel for the petitioner is highly technical and needs no further consideration.
4. The learned counsel contended that the complainant was residing about 15 or 16 miles away from the Madressa and it is not possible that on that very day when such incident had occurred he happened to be there. This is no reason for doubting the presence of the complainant because he had given satisfactory explanation that his two children who were studying in the Madressa had not come home for sometime and, therefore, he decided to see them. It is not unusual in rural society that whenever they go to visit places or Bazar usually they accompany with relatives and friends.
5. The learned counsel then contended that the complainant had stated that his son told him that Bilal Ahmed had gone to beg to food from the Mohallah but at the same time stated that he had served food to his father, Haji Ahmed Din and Haji Abdul Karim. The suggestion made is that the statement was false because if the complainant's son had gone to beg for food then no food would have been available in the Madressa. This is not the case. It is possible that there must have been food available at the Madressa because as is common in villages that residents contribute food for the students in Madressa who usually go and collect from them and keep there. This does not mean that no food would have been available at the Madressa. Even if this fact of serving food is not accepted, it does not in any manner adversely affect the testimony of the prosecution witnesses.
6. The learned counsel then contended that there is no evidence to prove that the petitioner had committed murder and sodomy on the deceased. The circumstantial evidence coupled with the evidence of P.W.2 the doctor, P.W.3 complainant, P.W.4 Haji Ahmed Din and P.W.5 Sajjad Ahmed are sufficient to prove the case against him. The two sons of the complainant were studying in the Madressa which has been confirmed by all the witnesses. P.Ws.2 and 3 alongwith Sajjad Ahmed the second son, went to the house of the petitioner and whatever they saw has aready been described.
These are such well authenticated facts and circvmstances which form basis for inference of petitioner's guilt. There is no other explanation or any such suggestion which may create doubt in the veracity of these facts stated by these witnesses. The complainant and P.Ws.3 and 5 did not have any ill-will, animosity or enmity with the petitioner to falsely involve him in this case. P.Ws.2. 3 and 5 were subjected to lengthy cross-examination but their testimony with regard to what they had seen at the time of knocking at the door and thereafter had not been shaken at all. P.W.5 though a child witness has firmly withstood the cross-examination which gives ring of truth and reliability. Their testimony is fully corroborated by the medical evidence which confirms that death was caused between 8 to 10 p.m. On 16-5-1990.
7. According to the learned counsel for the petitioner there is no ocular and direct evidence to prove the prosecution case and the circumstantial evidence is not sufficient to warrant conviction.
The ocular evidence to the extent it is direct and relevant has been discussed above. There is no witness who had seen the petitioner committing murder and sodomy. However the well authenticated proved facts and circumstances establish the guilt of the petitioner. The principle for evaluating and appreciating circumstantial evidence are well established, In cases where there is no direct evidence to show in what manner the offence was committed, the Courts must examine the probabilities in the light of indirect evidence of the injuries on the deceased, the nature and condition of the place where the incident took place, the articles secured (found) there. The motive for the crime and the other surrounding circumstances proved. (State v. Manzoor PLD 1966 SC 664).
In the words of Hamoodur Rahman. J. (as he then was): "But once the circumstances have been found to be so established they may well furnish a better basis for decision than any other kind of evidence. As Hewart, I.C.J. Observed in the case of Percival Leonard Taylor, James Weaver & George Thomas Donovan (1828) 21 CA 20 it is no derogation of evidence to say that it is circumstantial'. The circumstances from which inferences are to be drawn should not only be proved and "be incompatible with the innocence of the accused" but "incapable of explanation upon any other reasonable hypothesis than that of his guilt." The same principle was followed in Mst. Sairan alias Saleema v, The State (PLD 1970 Supreme Court 56). Mere concurrence of circumstances unless based on proved facts is not enough to draw inference. The coincidence should be "undesigned" and not manoeuvred or planted. In Fazal Elahi v. Crown (PLD 1951 FC 214) while discussing the nature and principles for assessing circumstantial evidence the following dictum of Hewart. I.C.J in the case of Taylor was quoted and relied upon:- "For the purpose of the present discussion, the emphasis of his passage lies in the expression 'undesigned coincidence'. Where there are indications of design, in the preparation of a case resting on circumstantial evidence, the Court should be on its guard against the possibility of being deliberately misled into false inference."
' In Muhammad Fayyaz v. State (PLD 1984 SC 445), the principles enunciated in the aforestated judgments and Billimoria v. State (PLD 1985 SC 313) were reiterated. It is thus well established that where undesigned coincidence of circumstances are proved and the chain of such circumstances are so strong that no other explainable conclusion can be drawn except the guilt of the accused the Court is bound to draw inference against him. The circumstantial evidence must be so clear, cogent and convincing that the facts could not be accounted for on any other rational hypothesis than the guilt of the accused. In such a situation unless the accused creates a reasonable doubt regarding natural conclusion which can be drawn or produces strong evidence of exculpatory nature, it may be difficult to discard such circumstantial evidence.
8. Thus on the facts found by the Courts below, which in our opinion, on the evidence was justified, it is established that after waiting for sufficiently long time P.Ws. 3, 4 and 5 on information that the deceased may have gone to the house of the petitioner, as usually he used to call the students there, went there and knocked at the door. Petitioner came out with blood-stained clothes in perplexed state and ran away. Immediately on entering the house Bilal was found dead with blood oozing from mouth and nose which indicate the incident to be fresh. The cloth was wrapped round his neck and hands were tied which seems to have been done to facilitate the commission of sodomy which has been proved by the medical evidence to have been committed. The injuries suggest that the deceased was resisting and had refused to submit to the petitioner's lust. The petitioner could not be arrested for five days. Furthermore the explanation offered and defence pleas raised by the petitioner as discussed above are completely false and concocted. In such chain of circumstances unless the petitioner prpduces strong evidence or suggestion which creates doubt or establishes exculpatory circumstances of a concrete nature, it is difficult to dislodge the irresistible conclusion that he had committed the murder.
9. The learned counsel then contended that the house from where the dead body was found belonged to Ghulam Muhammad brother of the petitioner, who is a teacher in the Madressa. This suggestion by itself is not sufficient to discard the testimony of the prosecution witnesses. Even if it was the house of petitioner's brother, his presence there cannot be ruled out. Moreso, he was seen by the P.Ws. When they visited the house.
10. The learned counsel referred to the statement made by the petitioner that he has falsely been involved in order to save the Madressa from disrepute and consequential stoppage of Government aid seems to be a completely false story. It was suggested in the statement that Moulvies of the Madressa have conspired and to save the real culprit have involved him in the incident. Such statement can hardly create doubt in the prosecution story. It seems strange that if the petitioner's brother is a teacher in the Madressa why his colleagues will involve the petitioner in such a sordid act. Secoadly when the complainant reached the petitioner's house and found his son lying dead there he immediately at 1-30 hours reported the matter to the police. He had waited for his son in the mosque up to 11 p.m. Thereafter he went to the house of the petitioner. Finding his son dead he immediately rushed to the police station. From the time he had reached the petitioner's house and the police station there was hardly much time at their disposal to have consultation with Moulvies of the Madressa to conspire and falsely implicate the petitioner. All these pleas seem to be an afterthought and completely false. The prosecution has proved its case beyond reasonable doubt.
There is no mitigating circumstance to warrant a lesser penalty much so as heinous crime has been committed on a child who was a student in a Madressa of a mosque. Leave is refused.