Full Judgment Text & Judicial Ruling

2017 Y L R Note 4 [Lahore] Before Abdul Sami Khan, J MUHAMMAD JAMIL---Appellant Versus The STATE through Advocate General Punjab, Lahore ---Respondent Criminal Appeal No.1085 of 2009, heard on 27th October, 2015. (a) Penal Code (XLV of 1860)--- ----Ss. 302 & 377----Qatl-i-amd and unnatural offence---Appreciation of evidence---Benefit of doubt---Delay of twenty hours in lodging of FIR not explained--- Last-seen evidence, validity of--- Extra-judicial confession, admissibility of---Medical evidence when not sufficient proof--- Enmity between parties---Complainant and accused being closely related---Recovery of dead body not effected through accused---Accused was alleged to have murdered minor son of complainant after committing sodomy---Trial Court convicted the accused under Ss.302 & 377, P.P.C. and sentenced him to undergo life imprisonment---Complainant had lodged the FIR on next day of the alleged occurrence, with delay of more than twenty hours; whereas, place of occurrence was at distance of twelve kilometers from the police station---Accused had not been named in the FIR, even after said delay; the FIR, therefore, did not render any corroboration to the case of prosecution---Complainant got recorded his supplementary statement on third day of the occurrence, whereby, he had showed suspicion about involvement of the accused in commission of the offences---Prosecution witnesses, who claimed to have seen the deceased with accused near place of occurrence, had not furnished any explanation as to why they had remained mum for thirty-five days after the occurrence and had neither informed the complainant nor police about the same---Statements of said witnesses, as last-seen evidence, had, therefore, lost reliability---Prosecution witnesses claimed that the accused had made extra-judicial confession before them while they were all present in Panchait in the village---No explanation was on record as to why said witnesses had not tried to capture the accused after his extra-judicial confession and had not reported factum of the same to the police---Accused had already joined the investigation, during which he had pleaded his innocence and also showed his willingness for DNA test--- Story introduced by said witnesses about extra-judicial confession was, therefore, improbable---Extra-judicial confession was weak type of evidence and the same, being not direct evidence, needed impartial or strong corroboration from other independent sources, which was missing in the present case---High Court discarded the extra-judicial confession for having been manufactured by prosecution to strengthen its case---No DNA test report was on record so as to positively connect the accused with the occurrence---Medical evidence was although in conformity with prosecution case to the extent of commission of sodomy and the manner in which the deceased had been murdered, but the same alone would not be sufficient to connect the accused with commission of the offences---In absence of trustworthy and confidence inspiring evidence, the last-seen evidence, extra-judicial confession and medical evidence did not bear any significance---Dead body of the deceased had been recovered by the complainant, and the accused had not been associated in the recovery from place of occurrence---Relationship of accused's family had never remained cordial with complainant party-- -Complainant was maternal uncle of the accused---Complainant, prior to alleged occurrence, had leveled allegation of theft of gold ornaments against mother of the accused---Present case was replete with number of circumstances, which had created serious doubt about prosecution story---Prosecution had failed to prove its case beyond any reasonable shadow of doubt---High Court, extending benefit of doubt, acquitted the accused---Appeal was accepted in circumstance. [Paras. 7, 8, 9, 10, 11, 12, and 13 of the judgment] Sajid Mumtaz and others v. Basharat and others 2006 SCMR 231; Tahir Javed v. The State 2009 SCMR 166; Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others PLD 2009 SC 53; Mursal Kazmi alias Qamar Shah and another v. The State 2009 SCMR 1410; Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103; Asadullah and another v. State and another 1999 SCMR 1034; Ch. Barkat Ali v. Major Karam Elahi Zia and another 1992 SCMR 1047; Sarfraz Khan v. The State and 2 others 1996 SCMR 188; Tariq Pervez v. The State 1995 SCMR 1345; Ayub Masih v. The State PLD 2002 SC 1048 and Muhammad Akram v. The State 2009 SCMR 230 rel. (b) Criminal trial--- ----Circumstantial evidence--- Chain of circumstances--- Requirements--- In criminal cases, the chain of circumstances should be so strong and solid that one circumstance should start right from toe of the deceased and the same should encircle a dense grip around the neck of the accused to the other end---Slight break in the chain of circumstances would definitely make the grip of the chain loose and also break the geometrical progression of the same, especially, when the same has been built up on basis of feeble or shaky evidence. [Para. 11 of the judgment] Asadullah and another v. State and another 1999 SCMR 1034; Ch. Barkat Ali v. Major Karam Elahi Zia and another 1992 SCMR 1047; Sarfraz Khan v. The State and 2 others 1996 SCMR 188 and Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103 rel. (c) Criminal trial--- ----Benefit of doubt--- Principles--- Many circumstances creating doubt in prosecution story are not required, and only one circumstance creating doubt is enough to acquit the accused. [Para. 12 of the judgment] Tariq Pervez v. The State 1995 SCMR 1345 rel. (d) Criminal trial--- ----Conviction, proof for---Conviction can only be based upon unimpeachable evidence and certainty of guilt, and any doubt arising in the prosecution case must be resolved in favour of the accused, not as a matter of grace but of right. [Para. 12 of the judgment] Ayub Masih v. The State PLD 2002 SC 1048 and Muhammad Akram v. The State 2009 SCMR 230 rel. Seerat Hussain Naqvi for Appellant. Irfan Zia, Deputy Prosecutor General for the State. Date of hearing: 27th October, 2015. JUDGMENT ABDUL SAMI KHAN, J.---Through this appeal under section 410, Cr.P.C. Muhammad Jamil appellant has assailed the judgment dated 28.05.2009 passed by learned Additional Sessions Judge Kamalia District Toba Tek Singh in case FIR No.609/2007 dated 06.12.2007, under sections 302, 377, P.P.C., Police Station Pir Mahal, whereby the appellant was convicted under section 302(b), P.P.C. and was sentenced to undergo imprisonment for life along with compensation under section 544-A, Cr.P.C. to the tune of Rs.100,000/- to be paid by him to the legal heirs of Hamza Ilyas deceased or in default thereof to further undergo six months' S.I. He was also convicted under section 377, P.P.C. and was sentenced to undergo imprisonment for life along with fine of Rs.50,000/- in default thereof to further undergo six months' S.I. Both the sentences were ordered to run concurrently and the benefit of section 382-B, Cr.P.C. was also extended to the appellant. 2. The prosecution story set forth in FIR (Ex.PH/l) is reproduced below:- "Muhammad Ilyas, father of Hamza Ilyas deceased victim, was resident of Chak No.720/G.B. and was running the shop of electrician at Adda Wahgi. On 05.12.2007, he went to his shop as per routine while his wife and children were present in the house. At about 05:00 p.m. when he came back to his house, his wife told him that his son Hamza Ilyas aged 4 years was with her at about 04:30 p.m. when she went to fetch milk from the dera and when she was returning from the dera, Hamza Ilyas was playing there. She asked him to accompany her but he insisted to play there. After sometime, Hamza Ilyas did not come back to his house, therefore, they started searching him but in vain. They also made announcements through loudspeaker of mosque. On 06.12.2007, they again started searching Hamza Ilyas along with Muhammad Aslam, and Muhammad Ramzan and found his dead body in the sugarcane crop of Muhammad Altaf Hussain." 3. The FIR in this case was registered on the next day of occurrence i.e. 06.12.2007 and after registration of FIR, investigation of the case was entrusted to Khalid Jamil S.I. During the course of investigation, the complainant got recorded his supplementary statement implicating Muhammad Jamil appellant in the instant case. After completion of the investigation, the report under section 173, Cr.P.C. was submitted before the Court, wherein, after observing legal formalities as provided in the Criminal Procedure Code, 1898, the learned trial court framed charge against the appellant, to which he pleaded not guilty and claimed trial. The prosecution in order to prove its case against the appellant examined thirteen witnesses before the learned trial Court. Muhammad Ilyas (PW-11) is the complainant of this case and he also deposed regarding extra-judicial confession Muhammad Shabbir (PW-7) along with Salam Din (PW-8) are the witnesses of last seen, while Muhammad Abbas (PW-9) and Muhammad Ashraf (PW-10) are the witnesses of extra judicial confession. Medical evidence has been furnished by Dr. Muhammad Azam Athar Gill (PW-5), who conducted postmortem examination on the dead body of Hamza Ilyas deceased. Khalid Jamil S.I. appeared before the learned trial Court as PW-12 and stated about various steps taken by him during the course of investigation. The remaining prosecution witnesses are formal in nature. 4. After completion of the prosecution evidence, the learned trial Court went on to record the statement of appellant as required under section 342, Cr.P.C. wherein he controverted the allegations leveled against him by the prosecution and professed his innocence. He did not opt to make statement on oath under section 340(2), Cr.P.C. to disprove the allegations leveled against him, however, produced Ex.DA to Ex.DJ in his defence. 5. Upon culmination of trial, learned trial Court found the case against the appellant to have been proved beyond any reasonable doubt, thus, convicted and sentenced him as mentioned and detailed in paragraph No.1 above. Hence, the instant appeal before this Court. 6. Learned counsel for the appellant submitted that the prosecution has miserably failed to bring the guilt of the appellant to the hilt, hence, the appellant deserves clean acquittal. On the other hand, learned Deputy Prosecutor General contended that the prosecution has amply proved the case against the appellant beyond any reasonable doubt, the impugned judgment does not call for any interference by this Court, so the conviction and sentences of the appellant be maintained and his appeal be dismissed. 7. I have heard the learned counsel for the parties at length, have given anxious consideration to their arguments and have also scanned the record with their able assistance. As per FIR (Ex.PH/1) the occurrence took place on 05.12.2007 at evening time and the matter was reported to the police by Muhammad Ilyas complainant (PW-11) by way of recording his statement under section 154, Cr.P.C. (Ex.PH) before Khalid Jamil S.I. (PW-12) on the next day i.e. 06.12.2007 at 02:15 p.m. in consequence of which FIR (Ex.PH/1) was lodged at Police Station Pir Mahal, District Toba Tek Singh at 02:45 p.m. The place of occurrence is at a distance of about twelve kilometers from the police station. There is a delay of more than twenty hours in reporting the matter to the police, but even then the appellant is not named therein as the culprit of the occurrence and in this eventuality, FIR (Ex.PH/1) does not render any sort of corroboration to the case of the prosecution. 8. It would not be out of place to mention here that Muhammad Ilyas complainant got recorded his supplementary statement on the third day of occurrence i.e. 07.12.2007, wherein he showed suspicion about the involvement of Muhammad Jamil appellant in the instant case. Besides Muhammad Jamil appellant, he also implicated Waqas Ali, Qurban Ali, Muhammad Baqar, Bagga one after the other. On 11.01.2008, Muhammad Ilyas complainant got recorded another supplementary statement, wherein he formally nominated Muhammad Jamil appellant as the culprit of the offence. Now coming to the prosecution evidence, it has been observed that the prosecution has tried to establish its case against the appellant through the statements of the witnesses of last seen namely Muhammad Shabbir (PW-7) and Salam Din (PW-8), witnesses of extra judicial confession namely Muhammad Abbas (PW-9), Muhammad Ashraf (PW-10) and Muhammad Ilyas complainant and the medical evidence furnished by Dr.Muhammad Azam Athar Gill (PW-5). I first discuss the last seen evidence. The prosecution has examined Muhammad Shabbir (PW-7) and Salam Din (PW-8) to prove that on the day of occurrence at about 05:00 p.m. Hamza Ilyas deceased was seen by them in the company of Muhammad Jamil appellant. During their statements before the learned trial Court as PW-7 and PW-8, both these witnesses maintained that they had seen Hamza Ilyas deceased child in the company of appellant near sugarcane field on 05.12.2007, whereas they came to know about his murder on 10.01.2008 and on 11.01.2008; they joined the investigation and got recorded their statements under section 161, Cr.P.C. This is very strange claim of the witnesses of last seen as it would not appeal to any man of prudent mind especially under the circumstances when they as well as the complainant and the appellant reside in the same village and also when the investigation was being conducted by Khalid Jamil S.I. (PW-12) at a wider range by joining number of people from the vicinity, the witnesses of last seen were not even aware of such an unfortunate incident for a considerable period of thirty five days. Muhammad Shabbir (PW-7) and Salam Din (PW-8) did not furnish any explanation as to why they had kept mum for such a long period of one month and five days and had not informed the complainant or the investigating officer in time. In the backdrop of such an eventuality, the statements of Muhammad Shabbir (PW-7) and Salam Din (PW-8) in respect of last-seen evidence lost reliability to put a worthy reliance upon the same. 9. So far as the evidence of extrajudicial confession is concerned, the statements of Muhammad Abbas (PW-9), Muhammad Ashraf (PW-10) and Muhammad Ilyas complainant (PW-11) are relevant in this regard. According to these witnesses, they were present in "panchait" convened in the village on 10.01.2008, where Muhammad Jamil appellant confessed his guilt in their presence, but astonishingly none of them as well as the members of "panchait" tried to apprehend the appellant. Muhammad Abbas (PW-9) is the real paternal uncle of the deceased child, whereas Muhammad Ilyas complainant (PW-11) is his real father and there is no explanation on record as to why they did not attempt to capture the appellant at the time of his alleged extra-judicial confession and even did not report the factum of alleged extrajudicial confession to the police on 10.01.2008. Even otherwise, the appellant had already joined the investigation of the instant case immediately after the supplementary statement of Muhammad Ilyas complainant (PW-11) dated 07.12.2007, he recorded his first version before the investigating officer, wherein he pleaded innocence and showed willingness for his D.N.A. test. In these eventualities, the story introduced by Muhammad Abbas (PW 9), Muhammad Ashraf (PW-10) and Muhammad Ilyas complainant (PW-11) about extra-judicial confession of the appellant seems improbable. Even otherwise, extrajudicial confession is a very weak type of evidence and the same obviously needs impartial/strong corroboration from other independent sources which is missing in this case. The evidentiary value of the extrajudicial confession came up for consideration before Hon'ble Supreme Court of Pakistan in the case of "Sajid Mumtaz and others v. Basharat and others" (2006 SCMR 231), wherein, at page 238, the Apex Court of Pakistan observed as under:- "17. ......This Court and its predecessor Court (Federal Court) have elaborately laid down the law regarding extra-judicial confessions staring from Ahmed v. The Crown PLD 1951 FC 103-107 up to the latest. Extra judicial confession has always been taken with a pinch of salt. In Ahmed v. The Crown, it was observed that in this country (as a whole) extra judicial confession must be received with utmost caution. Further, it was observed from time to time, that before acting upon a retracted extra-judicial confession, the Court must inquire into all material points and surrounding circumstances to "satisfy itself fully that confession cannot but be true". As, an extra judicial confession is not a direct evidence, it must be corroborated in material particulars before being made the basis of conviction. 18. It has been further held that the status of the person before whom the extra-judicial confession is made must be kept in view, that joint confession cannot be sued against either of them and that it is always a weak type of evidence which can easily be procured whenever direct evidence is not available. Exercise of utmost care and caution has always been the rule prescribed by this Court. 19. It is but a natural curiosity to ask as to why a person of sane mind should at all confess. No doubt the phenomenon of confession is not altogether unknown but being a human conduct, it had to be visualized, appreciated and consequented upon purely in the background of a human conduct. 20. Why a person guilty of offence entailing capital punishment should at all confess. There could be a few motivating factors like: (i) to boast off (ii) to ventilate the suffocating conscience and (iii) to seek help when actually trapped by investigation. Boasting off is very rare in such-like heinous offences where fear dominates and always done before an extreme confident as well as the one who shares close secrets. To make confession in order to give vent to ones pressure on mind and conscience is another aspect of the same psyche. One gives vent to ones feelings and one removes catharses only before a strong and close confident. In the instant case the position of the witnesses before whom extra-judicial confession is made is such that they are neither the close confident of the accused nor in any manner said to be sharing any habit or association with the accused. Both the possibilities of boasting and ventilating in the circumstances are excluded from consideration. 21. Another most important and natural purpose of making extra-judicial confession is to seek help from a third person. Help is sought firstly, when a person is sufficiently trapped and secondly, from one who is authoritative, socially or officially....... 22. As observed by the Federal Court, we would reiterate especially referring to this part of the country, that extra-judicial confessions have almost become a norm when the prosecution cannot otherwise succeed. Rather, it may be observed with concern as well as with regret that when the Investigating Officer fails to properly investigate the case, he resorts to padding and concoctions like extra-judicial confessions. Such confessions by now, have become the signs of incompetent investigation. A judicial mind, before relying upon such weak type of evidence, capable of being effortlessly procured must ask a few questions like why the accused should at all confess; what is the time lag between the occurrence and the confession, whether the accused had been fully trapped during investigation before making the confession, what is the nature and gravity of the offence involved, what is the relationship or friendship of the witnesses with the maker of confession and what, above all is the position or authority held by the witness". To fortify the above view, I have moved my attention to the case of "Tahir Javed v. The State" (2009 SCMR 166) wherein, at page 170,the august Supreme Court of Pakistan was pleased to observe as under:- "10. ...It may be noted here that since extra-judicial confession is easy to procure as it can be cultivated at any time, therefore, normally, it is considered as a weak piece of evidence and Court would expect sufficient and reliable corroboration for such type of evidence. The extra-judicial confession therefore must be considered with over all context of the prosecution case and the evidence on record. Right from the case of Ahmad v. The Crown PLD 1951 FC 107 it has been time and again laid down by this Court that extra judicial confession can be used against the accused only when it comes from unimpeachable sources and trustworthy evidence is available to corroborate it. Reference in this regard may usefully be made to the following reported judgments:- (1) Sajid Mumtaz and others v. Basharat and others 2006 SCMR 231, (2) Ziaul Rehman v. The State 2001 SCMR 1405, (3) Tayyab Hussain Shah v. The State 2000 SCMR 683, (4) Sarfraz Khan v. The State and others 1996 SCMR 188." Keeping in view the guidelines given by Hon'ble Supreme Court of Pakistan in the above mentioned judgments, I palpably discard the evidence of extrajudicial confession manufactured by the prosecution to strengthen its case. 10. Insofar as medical evidence is concerned, the dead body of Hamza Ilyas was recovered from the sugarcane on 06.12.2007 and on the same day, Dr. Muhammad Azam Athar (PW-5) conducted its postmortem examination who opined that the deceased was subjected to sodomy and the cause of his death was smothering by hands on nose and mouth or clothes or plastic bag which was sufficient to cause death in ordinary course of nature due to asphyxia and respiratory failure. The prosecution had also relied upon report of Chemical Examiner according to which the anal swabs of the deceased were stained with semen. However, there is no report of DNA on the file so as to positively connect the appellant with the occurrence. I would like to observe here that although medical evidence is in conformity with the prosecution case to the extent of commission of sodomy and the manner in which Hamza Ilyas deceased was murdered, but it alone would not be sufficient to connect the appellant with the commission of offence. Reliance can be placed on the case of "Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others" (PLD 2009 SC 53) Similar view was taken by the Hon'ble Supreme Court of Pakistan in the cases of "Mursal Kazmi alias Qamar Shah and another v. The State" (2009 SCMR 1410) and "Altaf Hussain v. Fakhar Hussain and another" (2008 SCMR 1103). In the absence of trustworthy and confidence inspiring evidence of last seen and extrajudicial confessi n, medical evidence does not bear any significance. 11. The circumstantial evidence provided by the prosecution against the appellant has already been discarded in discussion made in preceding paragraph. In criminal case, the chain of circumstances should be so strong and solid that one circumstance should start right from the toe of the deceased and the same should encircle a dense grip around the neck of the accused on the other end. A slight break in the chain of circumstances would definitely make the grip of chain loose and also breaks the geometrical progression of the chain especially when the same has been built up on the basis of feeble or shaky evidence. In this regard, guidance has been sought from the cases of "Asadullah and another v. State and another" (1999 SCMR 1034) and "Ch. Barkat Ali v. Major Karam Elahi Zia and another" (1992 SCMR 1047), wherein, Hon'ble Supreme Court of Pakistan has been pleased to observe as under:- "9. ...Law relating to circumstantial evidence is that proved circumstances must be incompatible with any reasonable hypothesis of the innocence of the accused. See "Siraj v. The Crown" PLD 1956 FC 123. The prosecution evidence in this case was of the deceased last seen with the accused and from the latter was recovered a handle of the hatchet blood stained and he was absent from the forest after the murder. The learned Federal Court held that the evidence was not sufficient and the accused was acquitted. In the case of "Karamat Hussain v. The State" 1972 SCMR 15 it was laid down that "In a case of circumstantial evidence, the rule is that no link in the chain should be broken and that the circumstances should be such as cannot be explained away on any hypothesis other than the guilt of the accused." The same view has been rendered by Hon'ble Supreme Court of Pakistan in case of "Sarfraz Khan v. The State and 2 others" reported as (1996 SCMR 188), wherein it has been observed as under:- "7. ... it is well-settled that circumstantial evidence should be so inter-connected that it forms such a continuous chain that its one end touches the dead body and other neck of the accused thereby excluding all the hypothesis of his innocence,.." Guidance can also be sought from the case of "Altaf…

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