ALI NAWAZ CHOWHAN, J.---This judgment shall dispose of Criminal Appeal No,571 of 1997 and Murder Reference No,207-T of 1997 which was sent to this Court for confirmation of death sentence of appellant Muhammad Shahbaz.
2. Both the appeal and the Murder Reference arise from the judgment handed down by Ch. Muhammad Ikram, Special Judge Anti-Terrorism (Punjab), Faisalabad, dated 21-10-1997, whereby, he held the appellant Muhammad Shahbaz guilty for the commission of kidnapping of his villager Haseeb Ahsan deceased under section 364-A., P.P.C. And sentenced him to death. While also holding him guilty for Qatl-e-Amd under section 302, P.P.C. And sentencing him to death as Qisas on this count. On the third count, he held him guilty under section 377, P.P.C. And sentenced him to life imprisonment. On the fourth count, he was found guilty under section 201, P.P.C. And was awarded sentence of 7 years' R.I. And a fine of Rs,40,000 or in default of payment of fine he was to undergo R.I. For three years. The fine, after its realization, had to be paid to the legal heirs of the deceased.
3. The occurrence took place on 5-3-1997 and the F.I.R. Was lodged on 7-3-1995 initially under section 364-A, P.P.C.
4. Munir Ahmed complainant in this case (P.W.7) is the father of Haseeb Ahsan deceased aged about 6-1/2 years. The appellant Muhammad Shahbaz is a milkman who supplied milk to the complainant family since several years before the occurrence. According to the complainant, his children were acquainted with him as the appellant visited their house on a daily basis. He while supporting the F.I.R. Exh.PG lodged by him, divulged the following facts in his testimony before the trial Court: "About two years back my son Haseeb Ahsan went outside the house to play at about 11-00 a.m. He did not return to the house till evening and so we were worried about him. I alongwith Muhammad Jamil my brother, Ghulam Mustafa and few others went out to search him out. In this connection when we have reached in Ghaffar Park Sufi Nazir Hussain and Muhammad Anwar P.Ws. Met us there. We told them about disappearance of Haseeb Ahsan deceased. They told us that they had seen Haseeb Ahsan riding on the bicycle of Shahbaz accused at 11-30 a..m. Heading towards Dhama Rest House. We all as stated above went to the house of Shahbaz accused in Chak No,309/JB, where Shahbaz was not present but his father Muhammad Sharif and Muhmmad Abbas his brother met us. We inquired from them about Haseeb Ahsan and Shahbaz. They told us that Shahbaz had gone out in the morning to sell the milk and he had not turned back. We came back to our house. We on the next morning again went to the house of Shahbaz accused. Shahbaz was not present there. His father was present. He told us that Shahbaz had not come back for the whole night and that he further told that he had confirmed it that Shahbaz had taken my son Haseeb Ahsan deceased away with him. He further told that the sooner they will come to the house he will return Haseeb Ahsan to us. Again we came back to our house. Neither Sharif, nor Shahbaz came to us nor my son was returned to them. I suspected Shahbaz that he had abducted my son for unnatural lust or for his murder. On the following day I went to the Police Station City Gojra".
5. According to him, on 7-3-1995, he went to the police station for lodging the F.I.R. This was at about 8-00 a.m. When he returned home at about 9-00 a.m. He accompanied the police for search of Shahbaz accused. They were still on the road near Chak No,309/JB when they saw the appellant standing on a Pacca road near the boundary limit of the village. He was without a bicycle. The complainant pointed out towards him when the police stopped the vehicle and apprehended the appellant, who was interrogated and who led to the place where the dead body was buried by him. The earth was, therefore, slightly elevated on the ground near a Khal (water- channel) of a canal located in Chak No,308/JB and the dead body was exhumed in the presence of a number of people of the village who had collected there.
6. Muhammad Jameel (P.W.8) is. The brother of the complainant who supported his version.
According to him, he also joined the investigation on 7-3-1995, When the appellant led to the recovery of the dead body which was identified. That he further got recovered a string P3 and a Kassi P4 which were recovered through memo. Exh.PH. That later he led the police to his residential house where he got recovered his bicycle which was taken into possession vide memo. Exh.PJ. His clothes which he wore at the time of occurrence were also recovered and these were Shalwar P6 and Qameez P7 which were taken into possession vide memo. Exh.PK. During his cross- examination, this P.W. Revealed that the deceased was taken by the accused from his house even in the past but this was after intimation to the parents. He also supported the version of the complainant with respect to the fact that after the deceased was found missing, they went to the house of the father of the appellant who deputed his son Abbas to look for the appellant but who could not be found.
7. Sufi Nazir Hussain (P.W.9), brother of the complainant, is a witness of last seen. According to him, he saw the appellant with the deceased proceeding on a bicycle towards a place near Dhama Bangla Gojra, Jhang Road at about 11-30 a.m. On that date. But during his cross-examination, he stated that he did not narrate the facts of this incident to the police.
8. Dr. Muhammad Aslam, Medical Officer (P.W.1) had examined the appellant and found him physically fit to perform sexual act. His opinion is reflected in his Medico-Legal Certificate which Exh.PA on the file.
9. Dr. Muhammad Asghar, Medical Officer (P.W.2) had conducted the post-mortem examination on 7-3-1995 on the dead body of Haseeb Ahsan. An excerpt from his testimony reflecting his observations is reproduced below: "A ligature mark 24 c.m. x 2.5 c.m. On upper part of front side and back of neck. On dissection it was found that there was congestion of subcutaneous tissue at some site of ligature. It was a dead body of a child aged about 6/7 years. Clad in Shalwar and Qameez of Karim colour, covered with mud. Faeces was present on Shalwar. Mouth was semi-opened. Tongue was bitten between the teeth. Eyes were semi-opened. Pupils were dilated. Hands were clenched. Nails were blue. Rigor mortis and post-mortem staining were present. Other injuries:
1. A reddish contusion 6 x 4 c.m. On front and lower part of left side of chest.
2. A reddish contusion 6 c.m. x 3.5 c.m. On front and lower part of right side of chest.
Thorax Right and left lungs were congested. In paricardium and heart both right and left ventricles contained bloods. Rest of the visceras of the thorax were healthy.
Abdomen Stomach was healthy, contained only a few co semi-digested food material. Small intestines were healthy and contained semi-digested food material. Large intestines were healthy and contained fascel matter. Liver, spleen and kidneys were congested. Bladder was empty . Rest of the visceras of the abdomen were healthy. On examination of anus there was stool in and around the anus.
There was laceration of mucosa at 12 O' Clock position in prone position. Scalp skull and vertebrae were healthy. Membrances and brain were congested. Spinal card was not opened."
10. According to the Doctor, the cause of death was asphyxia and shock due to strangulation. He obtained the swa bs from the anal area and sent these to the Chemical Examiner at Lahore for detection of semens. Exh.PC is the carbon copy of his post-mortem examination. While Exh.PD is report of the Chemical Examiner which is a positive report.
11. Muhammad Jamil (P.W.3) had identified the dead body. Mukhtar Ahmad (P.W.4) had prepared the site-plans Exhs. PE and PE/1. Tanvir Hussain (P.W.5) had taken the parcels of the case property to the office of the Chemical Examiner. Muhammad Ismail (P.W.6) had taken the dead body for post-mortem examination and received the last worn clothes of the deceased which he handed over to the Investigating Officer vide memo. Exh.PF.
12. Muhammad Aslam Niazi, Inspector (P.W.11) investigated this case while he was posted as S.H.O., Police Station Gojra. He had recorded the F.I.R. Exh.PG. He later went to the place from where the deceased had been abducted and prepared a rough plan. He arrested the appellant and on his pointation recovered the dead body from the place where it was buried near the Khal in Chak No,309/JB. He prepared the injury statement of the dead body Exh.PB and its inquest report Exh.PB/1.
According to him, the appellant also got recovered a Kassi P4 and a string P3 which were lying near the place of burial in a field of wheat and these articles were taken into possession vide memo.
Exh.PH. Later the appellant got recovered a bicycle and his shirt and Shalwar (P5, P7 and P6) from his house. Shirt and Shalwar were sealed into a parcel. He recorded the statements of the P.Ws. And got the site-plan prepared while depositing the recovered articles with the Moharrir. After the investigation, he challaned the appellant.
13. In his statement under section 342, Cr.P.C. The case of the appellant Muhanunad Shahbaz was one of denial. He denied the recoveries at his instance. He also denied having been examined by a medical officer for his potency test and about the positive result of the Chemical Examiner Exh.PD.
As to why this case was made against him, he stated: "The P.Ws. Have narrated the concocted story when Haseeb Ahsan deceased was found by them dead and the matter was reported to police after mutual consultation by Muhammad Munir Ahmad P.W. Father of the deceased with his brothers and for the reasons that Muhammad Munir Ahmad had .Taken a loan of Rs,50,000 from my father and myself and amount of Rs,25,000 which was the amount of Committee run privately by me and members of the family of Muhammad Munir Ahmad was not paid to me and the payment was deferred on different pretext and ultimately when we insisted for the return of money Muhammad Munir Ahmad and his family members became hostile towards us. Haseeb Ahmad their son was done to death by some person and when his dead body was found, they found an opportunity to involve me in this case with the connivance of the police as police was already under pressure due to unrest of the public on account of the murder of the child. The complainant and the witnesses had given false version in their statements and they stood belied by each other. All the recoveries have been planted with the help of the police and I am absolutely innocent in this case." He went on to say that he had a clean past record and was the only earning member of his family and had been implicated in this case because of a money dispute with the complainant side.
14. The main argument of learned counsel for the appellant was that in this case the appellant has been substituted for the real culprit in view of what has been said by the appellant in his statement under section 342, Cr.P.C. He went on to say that an accused in another case of this area had confessed his implication in the murder of Haseeb Ahsan which further establishes false implication of the appellant. During the cross-examination of the Investigating Officer, a reference was made to another F.I.R. No,135 of 8-4-1995 under section 302/34, P.P.C. Registered by him while he was posted as S.H.O., Police Station, Gojra. He denied the suggestion that he had taken the complainant party of the present case into confidence and disclosed to them that the actual culprit for the abduction of Haseeb Ahsan and his murder had been traced out during his investigation of F.I.R. No,135 (ibid) and that the complainant party of this case had refused to cooperate with him in locating the actual culprit. Nothing was brought on the file through evidence to support the theory of substitution advanced by the appellant side and the only inference which can be drawn is that this suggestion had only been made at random to create a doubt in the case of the prosecution. The suggestion was answered by the P.W. In the negative and the theory got buried thereafter.
15. Substitution anyhow is a rare phenomenon in cases involving a single accused and particularly so in a case where the accused and the eyewitnesses belonged to the same area or locality and are known to each other. A father would be the last man to substitute an innocent person for an assassin and a real culprit. Reference in this connection may be made to Muhammad Ayyub alias Nikka v. The State (PLD 1983 SC 27), Shaukat Javaid v. The State (PLD 1993 Pesh. 109), Mumtaz Khan v. The State (1993 PCr.p 333) and Kauro v. The State (1981 PCr.LJ 872).
16. Learned counsel for the appellant has also pointed out certain infirmities in the investigation. But these do not appear to be so material as to create a credibility problem for the prosecution case.
In this connection reference may be made to a document Exh.PM pertaining to the pointation of the place where the dead body was buried. This reflects the square number and the Killa number and exactly the place which was pointed out by the appellant. Learned counsel for the appellant was of the view that the appellant could not be expected to know the square number and Killa number etc. And reflections of these details would show that the document had been prepared in a different situation. He further pointed out the date written on the document which is 7-3-1995 and has referred to the testimony and cross-examination of Muhammad Jamil (P.W.8). According to whom the number of the square etc. Was revealed to the complainant side by the Patwari who was inducted in the case after this date. However, learned counsel for the appellant did not see the .Next line in the cross-examination wherein it was said by the same witness that the police had inquired about the square number from the persons of the village on the same day. The Investigating Officer (P.W.11) too stated that he came to know about the square number and the Killa number from persons standing there where the recovery had been effected. The square number and the Killa number are known to the villagers whose main business is agriculture and the mention about which in the document Exh.PM does not make the document doubtful.
17. Even, otherwise, it is the police who prepares the Fardaat (documents) and not the complainant party. The Courts are required to see the case on the basis of the entire scenario which develops in the shape of a story or a version and if there is an overall coherence between the factums forming the basis of a case, then the minor discrepancies can be overlooked. As they are then left of no consequence.
18. Needless, to mention that there is a recession in the police investigation and the skills which were available in the past with the Investigating Officers are not being acquired by most of the present officials. Therefore, the prosecution side cannot be allowed to suffer for just minor discrepancies.
19. The statement of the complainant who is the father of the deceased remained unshaken. He has no enmity with the accused side and the story unsupported by any defence evidence about the loan etc. Obtained by him was hardly a persuasive defence plea. The important circumstance that th e complainant after his son was found missing, straightaway went to the house of the accused and stayed there while the father of the accused deputed his other son Abbas to locate the appellant who had not returned home by then and also the complainant's visit there the next day in the same connection, builds a natural story about the events preceding the discovery of the dead body.
20. After Muhammad Shahbaz appellant was apprehended in the village on 7-3-1995, he pointed towards the place where he had buried the dead body and there is hardly much lapse of time between his arrest and the discovery of the place of burial, leaving a very little room for the police to manoeuvre. The string and the Kassi which were used for burial were also recovered from the site.
21. Referring to the post-mortem examination, learned counsel for the appellant had said that the time between the death and post-mortem examination as shown in the post-mortem examination report Exh.PC would reflect that the occurrence was one which took place not about 11-30 a.m. Or around when the deceased was last seen by Nazir P.W. Rather it appears to have taken place at about 5-30 p.m. On 5-3-1995 or 6-3-1995. The time which is recorded by a Doctor while performing the post-mortem examination or preparing a medico-legal report is not a definite time and a Doctor's opinion in this connection is often based on approximation rather than scientific exactitude. Reference in this connection may be made to the case Aziz ur Rehman v. The State (1983 PCr.LJ 2462).
22. There is also a circumstance of the last seen but we do not place much reliance on this because if Nazir, P.W. Had seen the accused taking the deceased with him and even though the accused was on friendly terms with the family of the deceased yet it was natural for him to have inquired as to where the little boy was being taken by the milkman. The evidence of last seen is not sacrosant and can easily be fabricated. Therefore, it is invariably viewed with skepticism unless it is in harmony with facts truthfully established as the res juste.
23. The recovery of the dead body on the pointation of the appellant and the recovery of a Kassi and a string which were used to cause death of the deceased through strangulation and burial of the dead body later are circumstances which connect the appellant with the death of the deceased. And, while believing the testimony of the complainant and Muhammad Jamil, P.W. Who have no enmity with the appellant, we are convinced that the prosecution has been able to establish its case against the appellant for the murder of Haseeb Ahsan after having abducting him with the intention of causing sodomy with him. Reference may be placed on Ghulam Mustafa v. State (PLD 1991 SC 718).
24. Obviously this was not a murder which was witnessed. This Court, therefore, feels that in the absence of any ocular evidence, punishment of Qisas should not be granted. We, therefore, uphold the conviction and sentence only under section 302(b) read with section 377, P.P.C.
25. Section 201 of the P.P.C. Reads as follows: "Causing disappearance of evidence or offence, or giving false information to screen offender--- Whoever, knowing or having reason to believe that offence has been committed, causes any evidence of the commission of that offence to disappear with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false... .... ..." We do not find that this sentence was attracted to this case and acquit the appellant of this charge.
26. As the deceased was taken by accused from his house and he was also seen by a P.W. With the appellant riding on a bicycle and no man objected to this as even in the past has used to go with the appellant, we are of the view that this was not a case of kidnapping and no offence under section 364-A, P.P.C. Is made out. Reference in this connection may also be made to Phalla Masih v.
The State (PLD 1989 Federal Shariat Court 72).
27. A question which bothers our conscience is with respect to the quantum of the sentence. On one side we see the gruesome murder of a child having been subjected to sodomy in the rustic surroundings of Gojra and who had accompanied the appellant because he knew him or perhaps for taking a ride on his bicycle. While on the other hand, we see the accused a youngster of about 20/21 at the time of occurrence who had just entered in a youthful age unpolished by education and was living in the rustic surroundings selling milk to people of the village, who may have been overpowered by his lust at the relevant time without being actuated with any wickedness or animus to murder while being oblivious of qualms of conscience. Reference in this connection may be made to Wazir Gul v. The State (PLD 1995 Karachi 112) and Muhammad Ikram alias Billa v. The State (1999 SCMR 406).
28. Section 302, P.P.C. Prescribes indeterminate sentence leaving it for a Judge to decide what may be appropriate between sentencing to life imprisonment or to death. The reason is that no legislative definition or classification can take account of all contingencies. However, right it may be to take the gravest view, of an offence in general, there will still be cases where the circumstances will be found to be unusual or the aspect of mitigation possible.
29. In the civilized world, the draconian notions and passion for retribution have been yielding to mankinds concern for charity. There penology is moving away from punitive practices and progressing towards humanitarian theory of resocialization. This is with the belief that a sentence must be in accordance with the offender, rather than the offence and that the sentencing requires consideration beyond nature of the crime and the circumstances surrounding it.
30. Our jurisprudence because of our turbulent society and the acts of terrorism being on the rampant is developing towards a more determinate view for death sentences in murder cases.
Whereas in India, the view has been that the death sentence should be awarded in rare cases and the imprisonment for life should be the normal sentence. In this connection reference may be made to Machhi Singh and others v. State of Punjab (AIR 1983 SC 957). A relevant excerpt from the said judgment is also reproduced below in extenso: "The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.
Before opting for the death penalty the circumstances of the offender also require to be taken into consideration alongwith the circumstances of the 'crime'. Life imprisonment is the rule and death sentence is an exception. In other words, death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances. A balance-sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised."
31. Punishing the offenders anyhow is a primary function of all civil states. The crucial problem, however, is whether a criminal is to be regarded by society as a nuisance to be abated or an enemy to be crushed or a patient to be treated or a refectory child to be disciplined? Or should he be regarded as none of these things butsimply be punished to show to others that antisocial conduct involves heavy punishment. It is in this perspective that the problem of crime, criminal and punishment is engaging the attention of criminologist and penologists all around the civilized world. Unfortunately, in our midsts, there is dearth of such individuals and such institutions who may give views in criminology and penology based on social conditions and provide guidance in respect of punishment. The Courts, therefore, cannot blindfoldedly and without taking note of the theories of punishment and the background of the offender resolve the issue of sentencing.
Needless to say that this duty falls on the superior Courts to fill in the vacuum and to do justice keeping in view all circumstances and background of the offender.
32. The American Bar Association in one of its treaties: "Sentencing Alternatives and Procedures". - Standards for criminal justice, have given the following view: "The punishment imposed should neither exceed a ceiling equal to that level justly deserved by the offender for the instant offence nor fall below a floor level necessary either to protect the public from further serious criminal acts by the defendant or to assure that the gravity of the offence is not deprecated."
33. It should not be forgotten that the poor performance of the Investigators is also a circumstance which has to be kept in view while the superior Courts are balancing crime and punishment and we should not hesitate in following a safe recourse while. Administering justice.
34. The upshot of the above discussion is that in the absence of any ocular evidence and while keeping in view the circumstances borne on record and all other factors mentioned above and while acquitting him of the other charges, we uphold has conviction and sentence on two counts that is under section 302(b) and section 377, P.P.C. While reducing his sentence under section 302(b), P.P.C. To life imprisonment and directing him to pay Rs,1,00,000 to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. Or in lieu thereof to suffer S.I. For six months.
35. In view of what has been stated above, Murder Reference is answered in the negative and death sentence is not confirmed.