MUHAMMAD AMIN Versus THE STATE

1. NASIM HASAN SHAH, J.‑‑This appeal, by leave of this Court, is directed against the judgment passed by the Federal Shariat Court dated 6‑3‑1986 in Criminal Appeal No. 194 of 1985.

2. The facts of the case .briefly are that Mst. Rehmat Bibi, P.W. 2, lodged an F.I.R. at Police Station Mozang, Lahore at 5.30 a.m. on 20‑7‑1983 to the effect that she had come to Lahore alongwith Ghulam Sughran, her daughter, aged about 6 years since a few days and that on 19‑7‑1983 the little girl went out to play in the street outside but did not return home for quite a long time and despite hectic search made to find her was not traceable. On the morning of 20‑7‑1983, the dead body of the aforesaid Mst. Ghulam Sughran was found lying in the Darbar of shrine of Baba Walayat Shah in Mohallah Mubarikpura. There were signs of violence on her dead body and some cruel person had murdered her with the intention of removing her ear‑rings, which she was wearing when she went out in the street.

3. During the investigation, three persons including the petitioner were arrested by the police and remanded to the police custody; two of them, however, were later on released by the police, but the petitioner was not so released and on 27‑7‑198.3 allegedly made a confessional statement under Section IA Cr.P.C. before the Iaqa Magistrate. The petitioner, however, soon thereafter challenged authenticity of the said statement alleging that it had been procured under coercion.

4. In the meanwhile, Dr. Mohammad Farooq Akmal conducted the post mortem examination on Mst. Sughran and found that the little girl had been strangulated to death and the cause of her death was asphyxia. He also reported the detection of blood and semen from the vaginal swabs of the dead body.

5. The prosecution rested its case on the confessional statement of the petitioner (which was later on retracted) wherein he admitted having kidnapped the girl and after taking her to various places committed rape on her and strangulated her to death for securing the ear‑rings. This statement, as already stated, was retracted subsequently and it was alleged that it had been procured by coercion. Two other witnesses namely Gulzar P.W.9 and Muhammad Yasin P.W.10 had supported the prosecution case in their statements made before the' Magistrate under section MA, Cr.P.C. which too were subsequently resiled from.' These witnesses were declared hostile in the trial Court and cross‑examined. The owner of the factory Muhammad Farooq P.W.6, in which the petitioner was working as a labour but he also did not support the prosecution case at the trial. There was no incriminating recovery from the petitioner.

6. The' learned trial Court relying on the statement of the petitioner made under Section 164 Cr.P.C. and the statements of Gulzar P.W.9 and Muhi Yasin P.W.10 also under section (A, Cr.P.C. (though they were declared hostile' as they did not support the prosecution version before the trial Court) convicted the petitioner under section 302, P.P.C. and sentenced him to life imprisonment plus a fine of Rs. 10,000. He also convicted him under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced him to 25 years' R.I. plus a fine of Rs. 5,000 and 30 stripes. He also convicted him under section 11 of the said Ordinance for kidnapping the little girl and sentenced him to life imprisonment plus a fine of Rs. 5,000 in addition to the infliction of 30 stripes. All the substantive sentences were ordered to run concurrently. These convictions and sentences were upheld, on appeal, by the Federal Shariat Court.

7. We have heard Mr. Arif Tqbal Hussain Bhatti, in support of this appeal and Mr. Muhammad Nawaz Abbasi, Assistant Advocate‑General, on behalf of the State.

8. The offences committed against a young helpless little girl are indeed horrible in he extreme and the punishment awarded fully justified in case it is established beyond reasonable doubt that the appellant is indeed the perpetrator of these hideous crimes. Unfortunately, however, the evidence produced by the prosecution at the trial is not all that satisfactory and sufficient to establish the serious offences for which the appellant is charged and which carry such serious penalties.

9. Admittedly the case of the prosecution is based mainly on circumstantial evidence, there being no eye‑witness of the occurrence. The alleged confessional statement made by the appellant was denounced by him as having been procure by coercion and torture. The mother of the appellant almost immediately after this alleged confessional statement was recorded, made an application to the same effect. The appellant too after making the confession was not remanded to the judicial custody but handed back to the police custody on their request to the effect that certain further recoveries had to be made from him in regard to the ear‑rings of the deceased girl. The factory owner Muhammad Farooq, in whose factory the appellant was working, did not support the prosecution at the trial. Gulzar P.W.9, owner of the hotel where the appellant had allegedly taken Mst. Sughran for meals, denied this fact in the trial Court, although he had so stated in his statement under section MA, Cr.P.C. He was declared hostile and cross examined where he explained the reason for making the earlier statement made by him under section 164, Cr.P.C. namely that he was beaten by the police and before the Magistrate had stated whatever the police had asked' him to say on account of fear. Similarly, Muhammad Yasin P.W.10, an employee of the hotel, also resiled from his earlier statement made under section 164, Cr.P.C. He had ever denied ever having seen the appellant before and also denied that he come to the hotel to take meals.

10. It is true that it is not illegal to base the conviction of an accused on the statement made by him under section 164, Cr.P.C. which statement is later on' retracted, but nevertheless in the absence of a single piece of completely untarnished evidence in this case connecting the appellant with the crime we I F think that it will not be safe to uphold his convictions and sentences on the kind 01.1 evidence produced at the trial. In these circumstances, the appellant must be given the benefit of doubt. Accordingly, this appeal is allowed. The convictions and sentences passed against the appellant are set aside. He shall be set at liberty forthwith if not wanted in any other case.

ORDER OF THE COURT

11. In view of the opinion of the majority this appeal is allowed. The convictions and sentences passed against the appellant are set aside. He shall be set at liberty forthwith if not wanted in any other case.

12. M.BA./M‑1193/S Appeal accepted.