' SH. RIAZ AHMED, J.---This appeal through leave of this Court is directed against the judgment and order dated 2-2-1994 delivered by a learned Single Judge of the Lahore High Court at Multan whereby the appeal preferred by the appellant assailing his conviction recorded by an Additional Sessions Judge at 'Sahiwal on charges under sections 302, 364-A read with section 377, P.P.C. Was dismissed.
2. The facts of the case are that on 8-8-1990 at about 8-00 p.m. Muhammad Sarwar complainant lodged an F.I.R. At Police Station Dera Rahim and on the basis thereof initially a case under section 364-A, P.P.C. Was registered. The complainant stated that at about 7-00 a.m. His son Khushnood aged about 8 years had proceeded towards the land of the complainant from the house, but did not return till afternoon. According to the complainant, he made a search, but the whereabouts of Khushanood could not be traced. The complainant Then got an announcement made through the loudspeaker of the mosque of the village as well as from the mosques of the adjoining villages about the disappearance of Khushnood, but without any success. In the evening, brother of the complainant informed the complainant that in the morning he had seen Khushnood proceeding on the road leading to his land on a donkey cart driven by the appellant Muhammad lrshad. On the receipt of this information, the complainant inquired from Irshad appellant about the whereabouts of Khushnood, but the appellant avoided to give any clear answer. The complainant further stated that Irshad is a had character and he suspected that with a view to committing unnatural offence with Khushnood, he had abducted him and may have kept him at some place.
3. On the basis of this information, the investigation of the case commenced and on the following day Allah Ditta. Inspector Police, the investigating officer arrested the appellant from the bus stop near Harappa Railway Station. The investigating officer associated Muhammad Amin P. W.11 and Allauddin, Lambardar of the village with him and inquired from the appellant about the whereabouts of Khushnood. The appellant in police custody led the Investigating Officer to a field in Killa No,7, Square No,185/9-L and from a ditch got the dead body of Khushnod deceased recovered.
The shirt P.3 and Shalwar P.4 of the appellant were also got removed and were taken into possession for their onward transmission to the Chemical Examiner. According to the report of the Chemical Examiner, Exh. PQ, the shirt and Shalwar were found stained with semen. Anal swabs and pari anal swa bs of the deceased were also taken and sent for their examination. These swabs were also found to be stained with semen. The appellant was got medically examined and according to the report of the doctor, he was sexually potent Dr. Mushtaq Ahmed conducted autopsy on the dead body of Khushnood deceased. The body was clad in shirt and blue Shalwar tied on the neck, bleeding from mouth, both ears and nose were also present. The autopsy conducted at 8-00 a.m.
On 10-8-1998 revealed the following injuries:
(1) Mark of ligature on the neck which was bluish in colour with 14 c.m. In length and 4 c.m. In width extending from the level of right ear to the level of left ear.
(2) Laceration of the anal mucous membranes found. There was sub-mucous haemotoma in the posterior anal wall at 5.0' clock to 7.0' clock position triangular in shape with base towards the externa.
' In the opinion of the doctor, death was caused due to asphyxia caused by throttling.
4. With the assistance of the learned counsel for the appellant and the State, we have carefully gone through the entire evidence on record and we have also perused the judgments delivered by the Courts below to ascertain as to whether the evidence was correctly appraised or not, This is a case of circumstantial evidence and the prosecution has placed reliance upon the evidence as to the recovery, last seen evidence and the medical evidence. The prosecution also placed reliance upon the recovery of shirt and Shalwar of the appellant, which was stained with semen. As far as the recovery of the dead body is concerned, it was recovered at the pointaion of the appellant after his arrest. The appellant had led Allah. Ditta, Inspector Police, the Investigating Officer, Lambardar Allauddin and Muhammad Amin P. Ws, to Killa No,7, Square No,33, where the dead body had been buried in a ditch and after digging the body was got recovered at the instance of the appellant. Allauddin Lambardar was given up by the prosecution having been won over and, therefore, the evidence of the Investigating Officer and that of Muhammad Amin P.W. Is to be scrutinized. Muhammad Amin P.W. Is an independent witness with no inimical background with the appellant. His statement is consistent and despite lengthy cross-examination, nothing could be elicited by the defence to shake his credit. The Investigating Officer's statement is also consistent and we are not persuaded to agree that the appellant had been falsely implicated and the recovery had not taken place at his instance. The element of fabrication of evidence is absent otherwise the ocular testimony could have been fabricated. In this view of the matter, we have no doubt in our mind that the dead body was got recovered at the instance of the appellant. An attempt was made to argue that the dead body was not buried, but was lying in open field. We are not prepared to believe because had the dead body been lying in open, vultures and would not have spared it. The process of putrefaction had started and, therefore, this clearly leads one to believe that it was not recovered from an open field as the defence wanted us to believe.
5. The last seen evidence in this case has been furnished by Muhammad Shafiq, real brother of the complainant, who is the father of the deceased. Muhammad Shafiq also had no enmity with the appellant and had seen deceased Khushnood in the donkey cart driven by the appellant on a road leading to the land of the complainant where the deceased was proceeding. This was not an unusual circumstance because in rural areas people take a lift if the means of transport is proceeding towards their own destination. The learned counsel for the appellant argued that Muhammad Shafiq is real brother of the complainant and, therefore, he should not be believed.
The contention is devoid of force because relationship is no ground to discard such evidence. In the afternoon when the complainant became panicky after the disappearance of his son and when he got announcements made on the loudspeakers of the mosque of his own village as well as other villages, only then Muhammad Shafiq became alert and, thus, proceeded to inform his brother that he had seen the deceased in the donkey car being driven by the appellant. We have no manner to doubt that Muhammad Shafiq had not seen the deceased at the relevant time of the day. On the other hand, intrinsic worth of his evidence leads us to believe that he was speaking the truth.
6. Adverting to the medical evidence, the nature of the two injuries enumerated herein before clearly shows that the death was on account of asphyxia caused by throttling. Ligature appeared on the dead body and, thus, the learned counsel for the appellant argued that it was not an act of throttling. This contention has also no force because the dead body at the time of the recovery was found with Shalwar tied with the neck of the deceased. Therefore, this contention is hereby repelled.
The medical evidence also shows that the anal and pari anal swabs taken from the dead body of the deceased were found to be stained with semen. It is, therefore, crystal clear that Khushnood deceased was subjected to sodomy before his death. In cases of circumstantial evidence, the criteria laid down by this Court in the case reported as The State v. Manzoor Ahmad tPLD 1966 SC 664) is as under:- "Before the guilt of the accused can be inferred merely lrom inculpatory circumstances, those circumstances must he found to tie incompatible with the innocence of the accused and 'incapable of explanation upon any other reasonable hypothesis than that of his guilt.' The circumstances sought to be relied upon must have been established beyond all doubt. But this only means a reasonable doubt, i.e, a doubt such as would assail a reasonable mind and not any and every kind of doubt and muchless a doubt conjured up by preconceived notions. 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.
"In a case where there is no direct evidence to show as to in what precise manner the victim came to be killed the Court has to discharge its onerous duty of determining whether the death was caused by the felonious act of some other person and, if so, what offence, if any, had been committed by such a person. It is not sufficient in such a case to say that since there is no direct evidence to connect any one with the felonios act the guilt cannot be fixed. It is precisely in such cases that it is the duty of the Court to examine the probabilities in the light of the indirect evidence of the injuries on the deceased, the nature and condition of the place where the incident took place, the articles found there, the motive for the crime and the other surrounding circumstances proved."
7. Judged on the touchstone of the above criteria, we are of the view that the prosecution has proved its case beyond any shadow of doubt through the last seen evidence, the recovery of dead body medical evidence, stains of semen or the Shalwar and shirt of the appellant, the anal and pari anal swa bs found stained with semen, leave no room to doubt that all this leads to irrefutable conclusion of the guilt of the appellant. In this view of the matter, we find no merit in this appeal and the same is hereby dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.