Full Judgment Text & Judicial Ruling

2021 P Cr. L J Note 70 [Lahore (Rawalpindi Bench)] Before Raja Shahid Mehmood Abbasi and Sadiq Mahmud Khurram, JJ MUHAMMAD FAIDOUS RAZA---Appellant Versus The STATE and another---Respondents Criminal Appeal No. 997 of 2018 and Murder Reference No. 7 of 2019, heard on 12th November, 2020. (a) Criminal trial--- ----Circumstantial evidence---Scope---Prosecution must establish each instance of incriminating circumstance, by way of reliable and clinching evidence and the circumstances so proved must form a complete chain of events on the basis of which no conclusion other than one of guilt of the accused could be reached. (b) Criminal trial--- ----Proof---Suspicion---Scope--Suspicion, however grave it might be, could never be treated as a substitute for proof. (c) Penal Code (XLV of 1860)--- ----Ss. 302, 367-A & 377---Qatl-i-amd, kidnapping for ransom, sodomy---Appreciation of evidence---Benefit of doubt---Extra-judicial confession---Scope---Accused were charged for committing sodomy with the son of complainant and throwing his body in the canal after committing his murder---Prosecution got examined a witness to prove the extra-judicial confession allegedly made by the accused in the case---Said witness stated that accused came to his house and confessed to have murdered the deceased---Other witness stated that witness of extra-judicial confession told of the said extra-judicial confession by the accused to him---Hard to understand as to why the accused would make his breast clean when apparently he was under no compulsion to oblige the prosecution which was clueless about the circumstances leading to the death of the deceased---Alleged extra-judicial confession was so detailed and comprehensive that it covered almost every aspect of the prosecution case---Said extra-judicial confession was in fact an encyclopaedia of the prosecution case---Man under the stress of compunction of his conscious was not supposed to give such minute details that too on the assurance of help---Witness stated that accused requested him to arrange pardon for him from the legal heirs of the deceased---Admittedly, said witness did not possess any influential portfolio at that time to have any influence to beg pardon for the accused from the complainant---Admittedly, said witness did not try to apprehend the accused at the time of making or even after the said extra-judicial confession in spite of the fact that he was allegedly present in his company of his own volition in his house---Witness was so na ve that he let the accused leaving his house without making any effort to apprehend him---Said conduct of witness was not natural---Said peculiar facts spoke volumes regarding the lack of veracity in the statement adduced by witness and also showed his unusual behaviour and the same was even otherwise contrary to the normal human behaviour---Witness admitted in his cross-examination that he had not got recorded in his statement before the police that he had developed a relationship with the accused about 4-5 months prior to the occurrence---In that manner witness admitted to have made a dishonest improvement in his previous statement---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances. (d) Criminal trial--- ----Extra-judicial confession---Evidentiary value---Extra-judicial confession was a very weak type of evidence and the same needed impartial/strong corroboration from other independent sources. Sajid Mumtaz and others v. Basharat and others 2006 SCMR 231 and Mst. Asia Bibi v. The State and others PLD 2019 SC 64 rel. (e) Penal Code (XLV of 1860)--- ----Ss. 302, 367-A & 377---Qatl-i-amd, kidnapping for ransom, sodomy---Appreciation of evidence---Benefit of doubt---Last seen evidence---Scope---Accused were charged for committing sodomy with the son of complainant and then throwing his body in the canal after committing his murder---Prosecution also led evidence to prove that the deceased was last seen in the company of the accused---In order to prove the said fact, the prosecution examined a witness, who stated that when he was present in his clinic along with other witness (not produced), he had seen the deceased in the company of the accused while riding a motorcycle---Said witness, despite the fact of having seen deceased in the company of the accused did not report the said matter either to the father of the deceased or to the police---Said witness stated that due to his engagements and busy schedule, he could not tell the said fact to his brother---Witness appeared before the Investigating Officer and got recorded his statement that he had seen the deceased with the accused---No reasonable explanation was offered by that witness for not reporting the matter to the police for as many as thirteen days despite the fact that a written application regarding the drowning of the deceased had been submitted by complainant to police---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances. (f) Criminal Procedure Code (V of 1898)--- ----S. 161---Delay in recording the statement of witness by the police---Effect---Delay in making a statement under S. 161, Cr.P.C., if not reasonably explained, diluted its evidentiary value. (g) Criminal trial--- ----Witness---Improvement made by witness---Effect---By improving his previous statement witness would impeach his own credit. Muhammad Ashraf v. State 2012 SCMR 419; Muhammad Mansha v. The State 2018 SCMR 772 and Muhammad Arif v. The State 2019 SCMR 631 rel. (h) Penal Code (XLV of 1860)--- ----S.302(b)---Qatl-i-amd---Appreciation of evidence---Last seen evidence---Scope---Last seen together was a weak type of circumstantial evidence, which could not be readily believed unless it was corroborated through unimpeachable source and it should be closed to the time and place of murder to exclude possibility of innocence of accused. Sadi Ahmad and another v. The State 2019 SCMR 1220 and Muhammad Abid v. The State and another PLD 2018 SC 813 rel. (i) Penal Code (XLV of 1860)--- ----Ss. 302, 367-A & 377---Qatl-i-amd, kidnapping for ransom, sodomy---Appreciation of evidence---Benefit of doubt---Delay of about thirteen days in reporting the matter to police---Scope---Accused were charged for committing sodomy with the son of complainant and then throwing his body in the canal after committing his murder---Record showed that the complainant, the father of the deceased, despite the knowledge of the drowning of the deceased did not report the incident to the police for more than 12 days---No explanation for the said delay matter to the police had been furnished---Delay was conspicuous by its magnitude---Brother of complainant/witness stated that he had reported the matter of drowning of deceased still the complainant of the FIR did not make any statement to the police---Record transpired that when the dead body of the deceased was recovered complainant got recorded his oral statement---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances. (j) Criminal trial--- ----Proof---Suspicion---Scope---Suspicion, howsoever strong, could never be considered proof of any fact. (k) Penal Code (XLV of 1860)--- ----Ss. 302, 367-A & 377---Qatl-i-amd, kidnapping for ransom, sodomy---Appreciation of evidence---Benefit of doubt---Call Data Record---Non-availability of voice record transcript of contact of accused and co-accused---Effect---Accused were charged for committing sodomy with the son of complainant and then throwing his body in the canal after committing his murder---Prosecution had also relied upon the Call Data Record collected during the investigation of the case so as to prove the guilt of the accused---Constable/witness stated that he retrieved the Call Data Record of mobile numbers under the use of the deceased as well as the accused---According to said witness, he handed over the same to the Investigating Officer---No voice record or its transcript had been brought on record---In absence of any voice call data record, simply the production of the Call Data Record without the disclosure of the details of the conversations was not relevant to prove any fact supporting the prosecution case against the accused---Considering the said facts in the given circumstances, doubt was created in the prosecution case, the benefit of which could not be denied to the accused---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances. Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274 rel. (l) Qanun-e-Shahadat (10 of 1984)--- ----Arts. 38, 39 & 40---Disclosure of accused before police---Scope---Said provisions of Qanun-e-Shahadat, 1984 come into operation only if and when certain facts were deposed to as discovered in consequences of information received from an accused person in police custody---In order to apply Art. 40 of the Qanun-e-Shahadat, 1984, the prosecution must establish that information given by the accused led to the discovery of some fact deposed by him and the discovery must be of some fact which the police had not previously learnt from any other source. (m) Penal Code (XLV of 1860)--- ----Ss. 302, 367-A & 377---Criminal Procedure Code (V of 1898), S. 103---Qatl-i-amd, kidnapping for ransom, sodomy---Appreciation of evidence---Benefit of doubt---Non-association of private witnesses---Effect---Recoveries of scarf, chappal and motorcycle---Reliance---Scope---Accused were charged for committing sodomy with the son of complainant and then throwing his body in the canal after committing his murder---Record showed that recoveries of the scarf, the chappal, the chadar and motorcycle made from the accused could not be relied upon as the fact remained that Investigating Officer of the case did not join any witness of the locality during the said recoveries from the accused which was in clear violation of S. 103 of the Cr.P.C. and therefore could not be used as incriminating evidence against the accused being evidence which was obtained through illegal means and was hence hit by the exclusionary rule of evidence---Investigating Officer did not ask any person resident of the area surrounding the places of said recoveries to witness the same---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances. Muhammad Ismail and others v. The State 2017 SCMR 898 rel. (n) Penal Code (XLV of 1860)--- ----Ss. 302, 367-A & 377---Qatl-i-amd, kidnapping for ransom, sodomy---Appreciation of evidence---Benefit of doubt---Ocular account and medical evidence---Contradictions---Scope---Accused were charged for committing sodomy with the son of complainant and then throwing his body in the canal after committing his murder---Medical evidence produced by the prosecution was contrary to the statements of the witnesses---According to the witness of extra-judicial confession, the accused had confessed that he had murdered the deceased with the use of a chaddar and then threw him in the canal after tying his body with a rope---However, Medical Officer opined that the death of the deceased was a result of drowning and did not opine that the deceased had been killed prior to being thrown in the water---Furthermore, complainant had alleged in hisoral statement and in his statement before the Trial Court that the accused had murdered his son after having carnal intercourse against the order of nature with him---Said allegation was also proved wrong and Medical Officer opined that in his opinion no such act had been committed---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances. (o) Criminal trial--- ----Appreciation of evidence---Principle---Only the intrinsic worth and probative value of the evidence would play a decisive role in determining the guilt or innocence of an accused person. Waqar Zaheer v. The State PLD 1991 SC 447 rel. (p) Criminal trial--- ----Evidence---No one should be construed into a crime on the basis of presumption in the absence of strong evidence of unimpeachable character and legally admissible one. (q) Criminal trial--- ----Benefit of doubt---Scope---Mere heinous or gruesome nature of crime would not detract the court of law in any manner from the due course to judge and make the appraisal of evidence in a laid down manner and to extend the benefit of reasonable doubt to an accused person. (r) Criminal trial--- ----Circumstantial evidence---Scope---Prosecution was supposed to provide all links in chain, where one end of the same touch the dead body and other the neck of the accused. Fiaz Ahmad v. The State 2017 SCMR 2026 rel. (s) Criminal trial--- ----Benefit of doubt---Principle---If a single circumstance creating reasonable doubt in the mind of a prudent person was available then such benefit was to be extended to an accused not as a matter of concession but as of right. Muhammad Mansha v. The State 2018 SCMR 772 rel. Muhammad Shabbir for Appellant. Sajjad Hussain Bhatti, Deputy Prosecutor General for the State. Date of hearing: 12th November, 2020. JUDGMENT SADIQ MAHMUD KHURRAM, J.---Muhammad Firdous Raza son of Muhammad Maskeen (convict) was tried by the learned Additional Sessions Judge, Attock in case FIR No. 153 of 2017 dated 16.06.2017 registered at Police Station Hazro, District Attock in respect of offences under sections 302, 367-A and 377, P.P.C. for committing the Qatl-i-amd of Muhammad Hissan Ali son of Muhammad Tariq Pasha (deceased). The learned trial court vide judgment dated 30.11.2018 convicted Muhammad Firdous Raza son of Muhammad Maskeen (convict) and sentenced him as infra: Muhammad Firdous Raza son of Muhammad Maskeen: Death under section 302(b), P.P.C. as Tazir for committing Qatl-i-amd of Muhammad Hissan Ali son of Muhammad Tariq Pasha (deceased) and directed to pay Rs.500,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased, in case of default thereof, the convict was further directed to undergo simple imprisonment for six months. The convict was ordered to be hanged by its neck till dead. 2. Feeling aggrieved, Muhammad Firdous Raza son of Muhammad Maskeen (convict) lodged Criminal Appeal No. 997 of 2018 against his conviction and sentence. The learned trial court submitted Murder Reference No. 07 of 2019 under section 374, Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant Muhammad Firdous Raza son of Muhammad Maskeen. We intend to dispose of the Criminal Appeal No. 997 of 2018 and Murder Reference No.07 of 2019 through this single judgment. 3. Precisely, the facts of the prosecution case as bought on record through the statement of Muhammad Tariq Pasha (PW-13) the complainant of the case, are as under:- "Hissan Ali deceased was my son who was studying in 10th class. Two/three months prior to 03.06.2017, Firdous Raza accused had developed relationship with him through face book and mobile phone. Since he had talked indecent way, therefore, I had stopped him from visiting my son Muhammad Hisan Ali. However, he told me that Hisan Ali is like his brothers and he kept seeing him despite my restriction. On 3.6.2017 he contacted Muhammad Hisan Ali through his sources and got him seated on motorcycle and took him on the motorcycle and on way he was seen by Muhammad Yousuf Pasha and Asif Meer PW. Thereafter at 6/6.15 p.m. Muhammad Bilal Pasha told me that he had received a call from Waseem PW who told him that Firdous Raza accused made a call to him by telling Muhammad Hisan Ali had drowned in the canal by slipping his foot. Thereafter, I confirmed this news from Firdous Raza accused. Upon confirming it I along with Muhammad Bilal Pasha Muhammad Waseem PWs and Sohail Ahmad went at Ghazi Brotha Canal at Barazai bridge. Firdous Raza accused was present there and I again confirmed the news from him. Muhammad Firdous Raza had lured my son to Ghazi Brotha Canal and after committing sodomy, he murdered him and thrown his body in the canal. Firdous Raza was confused and frightened and was not answering any of my queries properly. On 15.6.2017, I received telephone call of employees of Ghazi Brotha Canal who told me that they had found a dead body. Thereafter I along with Yousuf Pasha, Bilal Pasha and Muhammad Din to intake area of Ghazi Brotha Canal and found the dead body of my son lying there. The dead body was tied with a rope and there was a sack with iron rod fasten upon its back. The accused Firdous Raza, despite my restraining him had taken Muhammad Hisan Ali to the Ghazi Brotha Canal committed sodomy and then with the help of some unknown persons committed his murder and then thrown the body in the canal. The police came to the spot from where the dead body was found and I got recorded my oral statement Exh.PD which bears my signatures Exh.PD/1. Upon personal search of the dead body of the deceased the I.O. had recovered his black sun-glasses, electronic cigarette, cash of Rs.4500/- which the I.O. took into possession vide memo Exh.PM On 17.6.2017, I told the I.O. that Firdous Raza runs a mobile shop at Ghaurghushti and I suspected that he might have some photographs of my son, therefore, the same be recovered. I also handed over a picture of my son Exh.P17 to the I.O. which he took into possession vide memo Exh.PN, attested by me. On 26.6.2017, Dildar Husain PW came to me and told that Firdous Raza accused had come to him and made a confession. I produced Dildiar. Hussain before the I.O. at 5.30 p.m. who recorded his statement. On 8.8.2017, I joined the investigation of this case again and the accused while in police custody offered and led to the recovery of the scarf (Parna) Exh.P18 along with pair of Chappal (Hawai) Exh.P19 from the reeds near the Barazai bridge Ghazi Brotha Canal. The police secured the same vide memo Exh.PO, attested by me and Shafqat Irfan PW. I had identified the Parana and pair of Chappal as the belongings of the deceased and the police also prepared the memo of identification of these articles Exh.PP attested by me." 4. After the formal investigation of the case report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court wherein the appellant namely Muhammad Firdous Raza son of Muhammad Maskeen was sent to face trial. The learned trial court framed the charge against the accused on 01.11.2017, to which the appellant pleaded not guilty and claimed trial. 5. The prosecution in order to prove its case got recorded statements of as many as sixteen witnesses. Dildar Hussain (PW-9) stated that on 26.06.2017 the appellant made a confession of his guilt before him. Muhammad Waseem (PW-10) stated that on 03.06.2017 he received a call of the appellant who told him that the deceased had fallen in the Ghazi Brotha Canal and had drowned. Muhammad Bilal (PW-12) stated that he received a call from Muhammad Waseem (PW-10) who told him about the call of the appellant that the deceased had fallen and drowned in the Ghazi Brotha Canal. Muhammad Yousaf Pasha (PW-11) stated that on 03.06.2017 at about 5.00 p.m. he saw the appellant and the deceased riding a motorcycle and thereafter he received the news that the deceased had died. Muhammad Tariq Pasha (PW-13), the complainant of the case stated that he got recorded the oral statement (Exh. PD) on 16.06.2017, identified the dead body of the deceased, handed over the photograph of his deceased son (P-17) to the Investigating Officer and witnessed the recovery of scarf (P-18) and Chappal (P-19) from Barazai bridge over Ghazi Brotha Canal and identified him as being, of his son and made his detailed statement as reproduces in thee Paragraph 3 of this judgment. Bashir Ahmad Awan draftsman (PW-1) prepared the scaled site plan of the Place of occurrence (Exh. PA). Nauman Ali 1485/C (PW-2) got conducted the post mortem examination of the deceased and received the last worn clothes of the deceased from the Medical Officer. Muhammad Qasim 691/HC (PW-3) stated that on 16.06.2017 Sikandar Hayat S.I. (PW-16) handed over to him viscera of the deceased as well as the last worn clothes which on 22.06.2017 he handed over to Sikandar Hayat S.I. (PW-16) for their onward transmission to the office of Punjab Forensic Science Agency, Lahore. Muhammad Qasim 691/HC (PW-3) further stated that the on 17.06.2017 Sikandar Hayat, S.I. (PW-16) handed over to him one sealed parcel and on 01.08.2017 the Investigating Officer handed over to him two mobile phones and on 05.08.2017 the Investigating Officer handed over to him a CPU which on 22.08.2017 he handed over all the said articles to Sikandar Hayat S.I. (PW-16) for their onward transmission to the office of Punjab Forensic Science Agency, Lahore. Yasir Khan constable (PW-4) stated that he retrieved the Call Data Record of the mobile number under the use of the deceased and the two mobile numbers under the use of the appellant (Exh.P5/1-5, Exh.P6/1-6 and Exh. P7/1-18) and handed over the same to the Investigating Officer. Abdul Khaliq Kiyani A.S.I. (PW-5) recorded the formal FIR (Exh. PD/1). Ali Imran, A.S.I. (PW-6) stated that the Investigating Officer arrested the accused on 01.08.2017, recovered articles from his personal search and on 05.08.2017 the accused led to the recovery of motorcycle (P-12) and on 09.08.2017 the appellant led to the recovery of Chadar (P-16). Javed Iqbal S.I. (PW-7) stated that on 04.06.2017 he received the application of Muhammad Bilal Pasha (PW-12) regarding the drowning of the deceased and on 07.06.2017 he recorded the statements of Muhammad Bilal Pasha (PW-12) , Muhammad Tariq Pasha (PW-13) , Muhammad Waseem (PW-10) and Sohail. Muhammad Din (PW-14) stated that he took the photographs of the dead body of the deceased (Exh.P-20/1-11) at the time of its recovery. Saqib Abbasi S.I. (PW-15) stated that on 04.06.2017 he received the application (Exh. PL). Sikandar Hayat S.I. (PW -16) investigated the case from 15.06.2017 till 24.08.2017, arrested the accused on 01.08.2017 and detailed the facts of his investigation in his statement before the learned trial court. 6. The prosecution also got Dr. Zakir Hussain Faroqi (PW-8) examined, who on 16.06.2017 was posted as Medical Officer at THQ, Hospital Hazro and on the same day conducted the postmortem examination of the dead body of Muhammad Hissan Ali son of Muhammad Tariq Pasha (PW-13) (deceased). Dr. Zakir Hussain Faroqi (PW-8) observed as under:- "On external examination I found that it was dead body of a teenager male, mouth open due to the loss of the left upper lip, wearing dark green colour shalwar qamiz with no rigor mortis, white vest and underwear the shalwar was torn. The body was fowl smelling, putrefied skin was pealed off from the body except perineum, head, eye-brows and eye lashes lost. Eye lids were putrefied and lost. Right front of the upper chest and area of 10 x 6 cm below the right clavicle was pink bruised. The body was tied both fore-arms and the lower legs with nylon rope and also fasten from front of the abdomen to back attached with iron hooks and animal bone and the nylon made bag. Anal swabs were blood stained. Scalp, skull, and vertebra were healthy whereas membranes of brain, spinal card were healthy and the brain was putrefied. In thoraxes cavity, walls were putrefied whereas ribs and cartilages were found healthy. Pleura, larynx, trachea were healthy and no froth was seen, right and left lung were putrefied partially. Pericardium and heart were partially putrefied whereas blood vessels were healthy. In abdominal cavity walls and peritoneum were partially putrefied. There was froth in the mouth and pharynx and were partially putrefied. Diaphragms were healthy. Stomach was swollen and contained food particles. Pancreas was putrefied partially, small and large intestines were swollen: liver, spleen and kidneys were partially putrefied. Bladder was empty. The organs of generation were swollen and retracted. In my opinion, the cause of death was asphyxia due to the laryngeal spasm caused by drowning. I deferred my final opinion about the act of sodomy after the report of the Punjab Forensic Science Agency, Lahore. Now I have seen the repot of Punjab Forensic Science Agency, Lahore dated 10.07.2017 Exh.PK and according to this report no seminal material was detected in the anal internal and external swabs, shalwar, underwear, buniyan and qamiz of the deceased, hence I am of the opinion that no sodomy was committed with the deceased.". 7. On 29.11.2018 the learned DDPP gave up prosecution witnesses namely Asif Mehmood, Aman…

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