PLJ 2010 Cr.C. (
Present: Manzoor Ahmad Malik, J.
AHMAD HASSAN & others--Appellants
versus
STATE & etc.--Respondents
Crl. Appeal Nos. 84, 192 of 2004 & Cr.
Revision No. 127 of 2004, heard on 22.4.2010.
----Ss. 364-A, 302 & 34--Conviction
and sentence recorded against accused by Special Court--Challenge
to--Circumstantial evidence--Utmost care and caution is required for reaching
at a just decision of the case--Validity--In such like cases every chain would
be linked with each other and it would form such continuous chain that its one
and touches the dead body and other end would touch the neck of the
accused--But if chain is missing then its benefit must go to the accused. [Pp. 428 & 429] A
1992 SCMR 1047, 1996 SCMR 188 & PLJ
1999 SC 1018, ref.
Last Seen Evidence--
----Related witnesses--Appreciation of
evidence--First prosecution witness was resident of the place which is at a
distance of thirty five k.m. from the place of occurrence, whereas, the second
PW was resident of the same area and was maternal uncle of the deceased--It was
mentioned in FIR that he was with the complainant when he received call from
the deceased on the day of occurrence--Had the witnesses seen the deceased in
the company of the accused, they must have informed the complainant about this
fact because they were closely related to the deceased--No reason as to why
they did not inform the complainant because the complainant had admitted in
cross examination that his whole family was worried and searching the child--No
reliance can be placed on the piece of evidence. [P. 430] B
2010 SCMR 495, rel.
Extra-judicial confession--
----Extra-judicial confession is a weak
type of accused who was going to make extra-judicial confession, must expect
some favour from the person before whom he made confession but in the instant
case there was no such circumstances which could suggest that appellants were
having any hope to expect favour from prosecution witnesses before whom they
allegedly made extra-judicial confession. [Pp.
431 & 432] C
Recovery of wrist watch--
----Not mentioned in FIR--Recovery of a
wrist watch from accused which was taken into possession and recovery of chain
and locket from the accused which had been taken into possession--Complainant
had not mentioned in FIR that his son having any wrist watch and locked rather
he mentioned the clothes which were worn by him, therefore, no reliance can be
placed on such evidence. [P. 434] D
Recovery of Dead Body--
----Appreciation of evidence--Recovery of
memo--Joint pointation of the accused and prosecution had not produced any
conclusive evidence to show the place wherefrom, the dead body was recovered
was exclusively possessed or owned by the accused and there is no another
question whether it was the dead body of the deceased because PW (Dr.) who
conducted the postmortem examination had stated that dead body was not
identiable from its features, the witnesses who identified the dead body had
not stated anything as how they identified the deadbody--Held: Mere recovery of
dead body alone will not be sufficient evidence to sustain the conviction. [P. 434] E
Motive--
----Proved of--Although he had alleged
motive in his supplementary statement recorded on the same day who was
attributed to co-accused of the accused who had acquitted by trial Court and
appeals filed against his acquittal by the prosecution as well as the state
were dismissed by High Court--Motive was also not established against the
accused. [P. 434] F
----S. 364-A, 302 & 34--Abduction and
murder of the minor child--Conviction and sentence recorded against accused by
trial Court--Challenge to--Benefit of doubt--Appreciation of evidence--Discrepancies
were brought on the record--Last seen evidence--Extra-judicial
confession--Recovery of articles of the deceased--Recovery of dead
body--Motive--Validity--Despite the fact that an innocent child had lost his
life, the Court could not maintained the conviction on such type of evidence
and as benefit of doubt was the right of an accused--While extending benefit of
doubt to the accused--Appeal were allowed. [P.
434] G
Ms. Khalida Perveen, Advocate for
Appellants in Crl. Appeal No. 84 of 2004.
Ch. Muhammad Yaseen Zahid, Advocate for
Appellants in Crl. Appeal No. 192 of 2004.
Mr. M. M. Alam Chaudhary, Addl. Prosecutor
General,
Mr. Seerat Hussain Naqvi, Advocate for
Complainant.
Dates of hearing: 21.4.2010 &
22.4.2010.
Judgment
Ahmad Hassan and Muhammad Afzal appellants
were tried under the Juvenile Justice System Ordinance, 2000 in case FIR No. 21
dated 23.01.2002 registered under Sections 364-A/302/34 PPC at Police Station
Sarai Mughal, District Kasur. The learned Addl. Sessions Judge/Judge Special
Court Juvenile Justice System Ordinance, 2000, Pattoki vide his judgment dated
17.01.2004 convicted both the appellants Ahmad Hassan and Muhammad Afzal as
under:--
Both the appellants were convicted under
Sections 302(b)/34 PPC and sentenced to simple imprisonment for life. They were
further ordered to pay compensation under Section 544-A, Cr.P.C. amounting to
Rs. 1,00,000/- each to the legal heirs of the deceased. It was also ordered
that the amount of compensation would also be recoverable as land revenue and
in default whereof to further undergo six months simple imprisonment each. They
were also granted benefit of Section 382-B, Cr.P.C.
2.
Feeling aggrieved by the above conviction and sentence, Ahmad Hassan and
Muhammad Afzal appellants filed Crl. Appeal No. 84 of 2004 and Crl. Appeal No.
192 of 2004 respectively against their convictions and sentences. Muhammad Amin
Bhatti, complainant also filed Criminal Revision No. 127 of 2004 for
enhancement of sentence awarded to Ahmad Hassan and Muhammad Afzal appellants
from imprisonment for life to death. All these matters are being disposed of
with this single judgment.
3.
Briefly stated, the facts of this case are that on 12.01.2002, Arsalan
alias Hani son of complainant was missing and instant FIR was got registered
under Section 364-A, PPC on 23.01.2002. Thereafter, on the same day, the
complainant got recorded his supplementary statement that during the last
election, the complainant supported Malik party whereas, Bashir Ahmad son of
Muhammad Hussain Dogar supported Mayo party. On the day of election at about
2.00/2.30 p.m., complainant and Master Abdul Khaliq along with other villagers
were standing in the main bazaar Khudian Chak No. 41, when Bashir Ahmad came
there and gave threats that if the complainant opposed Mayo party, he will
teach him a lesson which the complainant could not forget for whole of his
life. Today i.e. 23.01.2002, Muhammad Jamil son of Khushi Muhammad and Zafar
Iqbal son of Nazeer Ahmad informed him that on 12.01.2002 at about 4.30 p.m.,
he was going to Islam Pura after seeing Dr. Abdul Ghani and when they were
passing through the bazaar, they saw that Bashir was walking ahead whereas,
Arsalan alias Hani and Ahmad Hassan were following him and they were being followed
by Muhammad Afzal in the bazaar and he has strong suspicion that his son
Arsalan alias Hani was abducted by the above said three persons. On the day of
occurrence. Arsalan alias Hani was wearing a chain and a locket of silver,
citizen wrist watch and on the reverse of locket and watch, Arsalan Hani was
inscribed.
4.
After completion of the investigation, the police submitted report under
Section 173 Cr.P.C. against Bashir Ahmad (acquitted accused) whereas, a
separate report under Section 173 Cr.P.C. was submitted against the appellants
as they were juvenile at the time of alleged occurrence.
5.
Formal charge was framed against the appellants to which they pleaded
not guilty and claimed trial. In order to prove its case, the prosecution
examined as many as twelve witnesses. The appellants were examined under
Section 342 Cr.P.C. Neither they produced any documentary evidence in their
defence nor opted to appear as their own witnesses as provided under Section
340(2), Cr.P.C. in disproof of the allegations levelled against them. However,
in reply to question why this case and why the PWs deposed against him,
Muhammad Afzal appellant replied as under:
"All the PWs are related interse and
are interested witnesses. Actually, my Phoopha who is also my co-accused Bashir
Ahmad (tried separately) had a long long enmity, political rivalry and had a
chain of criminal litigation with Faiz Dogar PW for which he nourished grudge
against us. Said Faiz Dogar, PW instigated the complainant to implicate us in
this case. Infact Faiz Dogar is the real person behind the curtan who had
concocted a false story against us."
Whereas, Ahmad Hassan appellant replied as
under:--
"All the PWs are interested witnesses
and related interse. Actually, Faiz Dogar PW contracted marriage with my chachi
against the will and wishes of my family. My Chachi namely Sharifan Bibi was a
big land owner lady. I am also an orphan. My chachi Sharifan died prior to this
occurrence and Faiz Dogar PW wanted to marry my mother after the death of my chachi
Sharifan and he wanted to occupy our land. My mother refused to contract
marriage with Faiz Dogar PW and in this respect he nourished grudge against me
and in order to black mail my mother, he instigated Ameen Bhatti PW to
implicate me in this case. Faiz Dogar also had political rivalry with Bashir my
co-accused and also had criminal litigation with him. Due to enmity with myself
and with my co-accused he, in connivance with the complainant falsely
implicated me in this case. The evidence of prosecution is after thought and in
very zig-zag manners produced false evidence."
6.
After conclusion of the trial, the learned trial Court convicted the
appellants and sentenced them as detailed above.
7.
Learned counsel for the appellants, in support of these appeals, contend
that there is an unexplained delay in lodging the FIR because as per
complainant his son got missed on 12.01.2002 whereas, he got recorded FIR on
23.01.2002; that admittedly, the appellants are not nominated in the FIR; that
the prosecution has relied on the following pieces of the evidence to prove the
guilt of the appellants:--
a. Last
seen;
b. Extra
Judicial Confession;
c. Recovery
of dead body of Arsalan deceased on the pointation of the appellants;
d. Recovery
of different articles from the appellants; and
e. Motive.
As far as last seen evidence is concerned,
learned counsel for the appellants submit that Zafar Iqbal (PW-2) and Muhammad
Jameel
(PW-3) claim that they saw the deceased Arsalan alias Hani in the company of
the appellants and one Bashir Ahmad Dogar on 12.01.2002 but their evidence
cannot be accepted because they are closely related to the deceased as Zafar
Iqbal (PW-2) is Khaloo and Muhammad Jameel (PW-3) is Mamoon of the deceased;
that Zafar Iqbal (PW-2) is resident of Vehari and permanent resident of
Islampur which is at a distance of thirty-five kilometers from the place of
occurrence whereas, Muhammad Jameel (PW-3) is resident of the same place and
Mamoon of the deceased; that even as per FIR, this witness remained with the
complainant on the day of occurrence i.e. 12.01.2002, therefore, it does not
appeal to common sense that if he saw the deceased in the company of the
appellants, he would have not in formed the complainant before the registration
of this case because it is not mentioned in the FIR, as such, reliance cannot
be placed on this piece of evidence.
As far as extrajudicial confession is
concerned, learned counsel for the appellants argued that it was allegedly made
by the appellants on 02.02.2002; that there was no occasion for appellants to
make such a confession before Sardar Faiz Ahmad Dogar (PW-6) and Abdul Ghani
(PW-7) as they could not expect any favour from the said PWs because appellant
Ahmad Hassan's family was not having good terms with Sardar Faiz Ahmad Dogar
(PW-6) and Abdul Ghani (PW-7), therefore, it is highly improbable for the
appellants to make confession before the said two PWs; that, if the alleged
confession is taken into consideration then as per confession it was Bashir
Ahmad Dogar who strangulated the deceased Arsalan and said Bashir Ahmad has
been acquitted by the learned trial Court, and that the appeals filed by the
complainant (Crl. Appeal No. 191 of 2004) and by the State (Crl. Appeal No. 851
of 2004) against his acquittal have also been dismissed by this Court.
As far as recovery of articles of deceased
Arsalan is concerned, learned counsel for appellants submit that as per
prosecution, appellant Muhammad Afzal led to the recovery of chain and locket
of the deceased which were taken into possession by the police vide recovery
memo. Ex-PE whereas, Ahmad Hassan appellant led to the recovery of citizen
wrist watch (P-3) of the deceased which was taken into possession by the police
vide recovery memo. Ex-PD. In the FIR, the complainant did not state that the
deceased was wearing these articles and this fact was mentioned in the
supplementary statement, therefore, no reliance can be placed on this piece of
evidence as the same has been fabricated by the prosecution to implicate the
appellants.
Learned counsel for the appellants further
submit that as far as recovery of dead body is concerned, the prosecution has
not produced any evidence to show that the said Haveli wherefrom dead-body was
recovered was possessed or owned by appellant Ahmad Hassan or any of his
relative; that even the recovery memo. Ex-PB regarding the discovery of dead
body shows that it was on the joint pointation of both the appellants and as
such no reliance can be placed on it; that Dr. Toqeer Ahmad Hashmi (PW-9), in
his cross-examination, has stated that the dead body, from the features, was
not identifiable, therefore, no reliance can be placed on this piece of
evidence.
As far as the motive is concerned, learned
counsel for the appellants submit that the complainant, in his statement before
the Court, has totally changed his version from the FIR and even the motive was
attributed to Bashir Ahmad Dogar, co-accused of the appellants who has been
acquitted. In support of their contentions, learned counsel for the appellants rely
upon the case of "Liaqat Ali vs. The State" (2007 SCMR 1307) and
"Tahir Javed vs. The State" (2009 SCMR 166).
8.
Learned Addl. Prosecutor General assisted by the learned counsel for the
complainant opposes these appeals on the ground that the complainant has no
motive to falsely implicate the appellants in this case; that the delay in the
instant case is not fatal for the prosecution as the complainant was first
searching his child on his own; that the last seen evidence is reliable and the
fact that it was disclosed late to the complainant is of no consequence because
at that time, the witnesses were not sure that Arsalan is going to be murdered;
that there is recovery of different articles wherein, name of the deceased is
inscribed and the dead body was discovered on the pointation of the appellants;
that there is no explanation as to how the dead body of the deceased came in
the Haveli of the appellant Ahmad Hassan and as such, the prosecution has
proved its case against both the appellants beyond any shadow of doubt,
therefore, both these appeals be dismissed.
9.
Learned counsel for the complainant, in support of revision petition
(Crl. Revision No. 127 of 2004) filed for enhancement of sentence awarded to
the appellants, contends that the circumstances of the case warrants the
enhancement of sentence awarded to the appellants from simple imprisonment for
life to death. He submits that the revision petition may be accepted and the
sentence of the appellants be enhanced to death.
9.
I have heard the arguments of the learned counsel for the parties at
length and perused the record with the able assistance of learned counsel for
the parties.
10.
As this case hinges on the circumstantial evidence, therefore, utmost
care and caution
is required for
reaching at a just decision of
the case. It is settled by now that in such like cases every chain should be
linked with each other and it should form such a continuous chain that its one
end touches the dead body and other end should touch the neck of the accused.
But if chain is missing then its benefit must go to the accused. In this
regard, guidance has been sought from the judgments of the Apex Court of the
country reported in "Ch. Barkat Ali vs. Major Karam Elahi Zia and
another" (1992 SCMR 1047), "Sarfraz Khan vs. The State" (1996
SCMR 188) and "Asadullah and another vs. State" (PLJ 1999 SC 1018).
In the case of Ch. Barkat Ali (supra), the August Supreme Court of Pakistan, at
page 1055, quoted as under:--
".....Law relating lo circumstantial
evidence that proved circumstances must be incompatible with any reasonable
hypothesis of the innocence of the accused. See `Siraj vs. The Crown (PLD 1956
FC 123)...... 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."
In the case of Sarfraz Khan (supra), the
August Supreme Court of Pakistan, at page 192, held 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......".
To support this view, further reliance is
placed on the case of "Altaf Hussain Vs. Fakhar Hussain and another"
(2008 SCMR 1103) wherein, at page 1105 it was held by the Hon'ble Supreme Court
as under:--
"7......Needless to emphasis that all
the pieces of evidence should be so linked that it should give the picture of a
complete chain, one corner of which should touch the neck of the deceased and
other corner to the neck of the accused. Failure of one link will destroy the
entire chain."
11.
In this unfortunate incident a child of the age of 7/8 years lost his
life, therefore, evidence has been scanned very carefully. In the First
Information Report, the complainant of the case i.e. Muhammad Amin Bhatti
(PW-1) as stated as under:--
URDU
This FIR was got registered on 23.01.2002
whereas, as per complainant, his son was missing since 12.01.2002. While
appearing before the Court, the statement of this witness is much different
from the contents of the FIR and he was duly confronted with his previous
statement and the discrepancies, were brought on the record. The prosecution
evidence against the appellants can be divided into following heads:-
(i) Last
Seen Evidence; (ii) Extrajudicial
Confession; (iii) Recovery of different articles of the deceased; (iv).
Recovery of deadbody; and (v) Motive
As far as last seen evidence is concerned,
it has been noticed that both the PWs (PW-2 & PW-3) are closely related to
the deceased. First witness (PW-2) is resident of the place which is at a
distance of thirty-five kilometers from the place of occurrence, whereas, the
second (PW-3) is resident of the same area and is Mamoon of the deceased. It is
in the FIR that he was with the complainant when he received call from the
deceased on the day of occurrence i.e. 12.01.2002 whereas, after ten days of the
incident, the FIR was got registered and in that FIR it is not mentioned that
both these witnesses have seen the deceased in the company of the appellants.
Had these witnesses seen the deceased in the company of the appellants, they
must have informed the complainant about this fact because they are closely
related to the deceased. There is no reason as to why they did not inform the
complainant because the complainant has admitted in the cross examination that
his whole family was worried and searching the child, therefore, no reliance
can be placed on this piece of evidence. Reliance in this respect can be placed
on the case of "Bashir Ahmad Vs. Fida Hussain and three others" (2010
SCMR 495) wherein, at page 497 & 498, it was held that:--
"7.
The evidence of last-seen furnished by P. W.8 Muhammad Baskhsh and P.W.
10 Muhammad Bilal does not inspire confidence. Muhammad Bakhsh is first cousin
of the complainant and Muhammad Bilal is brother of complainant. Had they seen
the deceased in the accompany of the accused on the night when the deceased was
murdered, they would have informed the complainant the next day when the dead
body of the deceased was discovered but they did not do so. P.W.8 stated in the
cross-examination that he could not mention the exact date when he passed the
above information, to the complainant. He however, stated that he informed the
complainant few days after the occurrence. Similarly, P.W. 10 Muhammad Bilal
also did not immediately disclose the above information of having last seen the
deceased in the accompany of the accused, to the complainant and did not go to
the police. Statements of both the witnesses were recorded by the Police under
Section 161 Cr.P.C. during proceedings under Section 174 Cr.P.C. in which they
did not state that they had seen the deceased in the accompany of the accused
in the night in which he was killed. In our opinion, the evidence of last seen
produced by the prosecution was, therefore correctly disbelieved by the trial
Court."
Next piece of evidence is extrajudicial
confession which was allegedly made by the appellants before Sardar Faiz Ahmad
Dogar (PW-6) and Abdul Ghani (PW-7). As far as PW-6 is concerned some enmity
has been suggested on behalf of Ahmad Hassan and Muhammad Afzal appellants to
this PW. As far as Ahmad Hassan appellant is concerned, it was suggested that
his Chachi was married with Faiz Dogar (PW-6) who died and subsequently, Faiz
Dogar wanted to marry with the mother of Ahmad Hassan appellant but his mother
refused to marry him who nourished grudge against Ahmad Hassan appellant and in
order to blackmail his mother, he was falsely implicated in this case on the
asking of said Faiz Dogar. As far as Muhammad Afzal appellant is concerned, it
was suggested that Faiz was having enmity with his uncle Bashir Ahmad
(acquitted accused). Faiz Ahmad Dogar (PW.6) had admitted that he had got
registered only one criminal case against father of Bashir Ahmad (acquitted
accused) uncle of Muhammad Afzal appellant namely, Muhammad Hussain. As far as
other witness Abdul Ghani (PW-7) is concerned, he is real brother of the
complainant. The Hon'ble Supreme Court of Pakistan in a number of cases also
held that extrajudicial confession is a weak type of evidence. So, the most
important point for analyzing this piece of evidence is that the accused, who
is going to make extrajudicial confession, must expect some favour from the
person before whom he makes confession but in the present case, there are no
such circumstances which could suggest that appellants were having any hope to
expect favour from the P.Ws before whom they allegedly made extra-judicial
confession. There is another important point in this case that even as per
extrajudicial confession, allegedly made by both the appellants, it was Bashir
Ahmad who strangulated the child and appellant namely Afzal was holding the
legs and Ahmad Hassan was holding the arms of Arsalan deceased, which does not
appear to be convincing because for killing a child of the age of seven years,
this exercise appears' to be untrue and improbable moreover said Bashir Ahmad
has been acquitted and the appeals filed by the complainant and the State
against his acquittal have also been dismissed. The question of placing
reliance on extra-judicial confession of the accused persons, came up for
consideration before the August Supreme Court of Pakistan in the case of
"Sajid Mumtaz and others Vs. 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 is 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."
In the instant case, the appellants have
alleged enmity against PW-6 whereas. PW-7 is real brother of the complainant,
therefore, it is highly improbable for the appellants to make extrajudicial
confession before such person who were not likely to give any favour to them,
therefore, no reliance can be placed on extrajudicial confession allegedly made
by the appellants.
As far as recovery of a wrist watch (P-3)
from Ahmad Hassan appellant which was taken into possession vide recovery memo
Ex-PD and recovery of chain and locket (P-4/1-2) from Muhammad Afzal appellant
which was taken into possession vide recovery memo Ex-PE is concerned. In the
FIR, the complainant has not stated that his son was having any wrist watch and
locket rather he mentioned the clothes which were worn by him, therefore, no
reliance can be placed on this evidence.
Next piece of evidence is recovery of dead
body. Recovery memo Ex-PB has been prepared in this respect, perusal whereof
shows that it was on the joint pointation of both the appellants and the
prosecution has not produced any conclusive evidence to show that, the place
wherefrom, the dead body was recovered was exclusively possessed or owned by
Ahmad Hassan appellant and there is another question whether it was the dead
body of Arsalan alias Hani because Dr. Toqeer Ahmad Hashmi (PW-9) who conducted
the postmortem examination has stated that, the dead body was not identifiable
from its features, the witnesses who identified the dead body (PW-2 and PW-3)
have not stated anything as how they identified the dead body. Even otherwise
mere recovery of dead body alone will not be sufficient evidence to sustain the
conviction.
As far as motive is concerned, complainant
has not alleged any motive in the FIR registered on 23.01.2002. Although he has
alleged motive in his supplementary statement recorded on the same day and that,
too, was attributed to Bashir Ahmad Dogar co-accused of the appellants who was
acquitted by the learned trial Court and appeals filed against his acquittal by
the complainant as well as the State were dismissed by this Court, therefore,
motive is also not established against the appellants.
12.
In the afore-referred circumstances, despite the fact that an innocent
child has lost his life, the Court cannot maintain conviction on this type of
evidence and as benefit of doubt is the right of an accused, therefore, while
extending benefit of doubt to the appellants, these appeals are allowed. The
convictions and sentences awarded to the appellants are set aside. They are in
jail, they be released forthwith if not required to be detained in any other
case. For aforesaid reasons Criminal Revision No. 127 of 2004 filed by the
complainant is dismissed.
(R.A.) Appeal
allowed.