MUHAMMAD AMIN Versus STATE

JAVED IQBAL, J.-- -This appeal by leave of the Court is directed against judgment, dated 27-6-1994 passed by learned Single Judge of the Lahore High Court, Lahore, whereby the conviction and sentence of appellant under section 302, P.P.C. for committing the murder of one Hakim Ali, awarded by learned Sessions Judge, Kasur, vide judgment, dated 12-8-1991 to suffer imprisonment for life and fine of Rs.20,000 or in default of its payment to further undergo R.I. for one year with the direction to pay an amount of Rs.20,000 as compensation to the legal heirs of deceased and in default whereof to suffer S.I. for six months was upheld.

2. Precisely stated the facts of the case are that F.I.R. bearing No.382 was got lodged with Police Station Raiwind, District Kasur on 23-7-1990 at 2-15 p.m. by Noor Muhammad (complainant) alleging therein that on his arrival from. Lahore his wife informed that Muhammad Amin (appellant) resident of Babliana who was friend of his son Muhammad Ali took his younger son namely Hakim Ali aged 9 years from the house and thereafter he did not return. 1t is further averred that while he was searching for his son, Din Muhammad and Abdul Ghafoor told him that they have seen his son Hakim Ali in the company of Muhammad Amin while proceeding towards Rajbah Zafarkey at 6-00 p.m. In pursuant to said information he approached the parents of Muhammad Amin who informed that he was not available in the house but assured that any information pertaining to Hakim Ali would be communicated after arrival of Muhammad Amin. It is further averred that since whereabouts of Hakim Ali could not be traced he .alongwith Hurmat Khan, Bhalli Khan, Din Muhammad, Muhammad Yasin and Bashir approached Sardar Muhammad Sharif, Councillor of Babliana and informed about the missing of Hakim Ali and expressed his suspicion regarding involvement of Muhammad Amin. Sardar Muhammad Sharif the Councillor called Muhammad Amin who arrived at his Dera alongwith his father and other relatives and confessed that since the father of Hakim Ali was not permitting him to meet his son Muhammad Ali and, therefore, he took Hakim Ali the younger brother of Muhammad Ali and killed him by strangulation and drowning him in Rajbah Zafarkey and whose dead body could be found there. After receiving the said information the complainant alongwith others went to Rajbah Zafarkey and at the pointation of Muhammad Amin the dead body of Hakim Ali was got recovered. It is further averred by the complainant that since the character of Muhammad Amin was not up to the mark, therefore, he had asked his son Muhammad Ali to avoid his company which was deeply felt by Muhammad Amin and due to that grudge .and annoyance his younger son Hakim Ali was killed. A case under section 302, P.P.C. was got registered against Muhammad Amin and after completion of investigation he was sent up for trial and on conclusion he was found guilty and convicted under section 302, P.P.C. by the learned Sessions Judge. Kasur, vide judgment, dated 12-8-1991 and sentenced to undergo life imprisonment with fine of Rs.20,000 and with further direction to pay an amount of Rs.20,000 as compensation to the legal heirs of the deceased and in case of default to further undergo six months' S.I. Being aggrieved an appeal was preferred which was also rejected by learned Single Judge of the: Lahore High Court, Lahore, vide judgment, dated 27-6-1994.

3. Leave to appeal was granted vide order dated 13-8-1995 relevant portion whereof is reproduced hereinbefore for ready reference:--

"4. The case against the petitioner rests mainly upon the following circumstances:--

(1) He was annoyed with the family of the deceased when the latter stopped him from meeting Muhammad Ali;

(2) he had taken the deceased from his house and was seen in his company at 6-00 p.m.;

(3) he had made confession before the gathering at the Dera of Sardar Muhammad Sharif; and

(4) he had led the gathering to the dead body.

(5) there is also no direct evidence that it was the petitioner who had taken the deceased away from his house. Mst Hajiran, mother of the deceased, who had direct knowledge in this regard, was not examined by the prosecution. As regards the claim of Din Muhammad that he had seen the deceased and the petitioner together at 6-00 p.m., it does not by itself assist the prosecution in proving the charge of murder against the petitioner;

(6) so far as the confession made by the petitioner at the Dera of Sardar Muhammad Sharif is concerned, Noor Muhammad (P.W.6), father of the deceased, admitted:--

We might have reached the Dera of Muhammad Sharif, Chairman at about 8/9 a.m. The accused had reached there about half an hour after the same and thereafter he made the confession. Muhammad Sharif then desired the accused to tell if he had concealed Hakam Ali anywhere or if he had killed him as he will then give him protection. '

Now, the Chairman of the Local Union Council is a fairly important functionary in his area and any inducement emanating from him was sufficient to assure the petitioner who was merely a young boy of 13/14 years of age at the relevant time, that by making the confession he would be let off and protected. In the circumstances, his statement would appear to be hit by Article 37, Qanun-e-Shahadat (equivalent to section 24, Evidence Act) and thus, irrelevant. It may also be mentioned that Sardar Muhammad Sharif was examined by the High Court as a Court-witness and he denied that the petitioner had made any confession before him.

(7) The witnesses of the prosecution alleged that after getting the dead body recovered the petitioner ran away. It seems unlikely that the gathering which included a number of close relatives of the deceased would allow him to escape, particularly, when they were convinced that the petitioner was the person who had killed the deceased. The conduct of the gathering on the occasion casts doubts on the story of the prosecution that the dead body was recovered at the instance of the petitioner.

(8) There is also no direct evidence on the point that the deceased was killed because his family had stopped the petitioner from meeting his elder brother. The most important witness in this regard was Noor Muhammad (P.W.6), father of the deceased. Apart from referring to what the petitioner had allegedly said before the gathering he did not utter a single word in this regard. On the other hand, if the story of the prosecution was true it is unlikely that the petitioner would have permitted to take the deceased from his house or stay the whole day with him.

(9) For the reasons stated above I am of the view that it is a fit case where leave to appeal should be granted.

4. It is mainly contended by Ch. Muhammad Akram, Advocate Supreme Court on behalf of appellant that it was an unseen occurrence and no direct or circumstantial evidence whatsoever is available connecting the appellant with commission of alleged offence which aspect of the matter went unnoticed and resulted in serious miscarriage of justice. It is also contended that on the basis of "last seen evidence" being a weak type of evidence no conviction could have been awarded in absence of any corroboratory *or confirmatory material which was absolutely lacking. It is urged with vehemence that the depositions of Muhammad Din (P.W.5) and Noor Muhammad (P.W.6) should have been discarded being interested witnesses but on the contrary heavy has been placed on their statements in violative of the settled norms of justice and well-entrenched principle of criminal administration of justice.

5. Mr. Arshad Ali, learned State Counsel while controverting the contentions as agitated on behalf of convicted appellant argued that prosecution has succeeded in proving the accusation beyond shadow of doubt. He has referred the eye account duly corroborated by medical evidence, factum of recovery of dead body at the instance .of appellant and motive. It is pointed out .that conviction could have been awarded on the basis of last seen evidence subject to availability of corroboration and according to him sufficient corroboratory material has come on record and thus, no illegality or irregularity whatsoever has been committed either by the trial or Appellate Courts by convicting the appellant.

6. We have carefully, examined the respective contentions as agitated on behalf of the parties in the light of relevant provisions of law, and record of the case. We have minutely gone through the judgment, dated 12-8-1991 passed by the learned Sessions Judge, Kasur, and impugned judgment passed by learned Single Judge of Lahore High Court, Lahore. We have also thrashed out the entire evidence. It is an admitted feature of the case that it was an unseen occurrence and no direct evidence has come on record connecting the accused/,appellant with commission of alleged murder of Hakim Ali. The prosecution case mainly hinges upon last seen evidence, recovery of dead body at the pointation of appellant, medical evidence, extra judicial confession and motive. The pivotal questions which need determination are as to whether the conviction could have been awarded or the basis of last seen evidence .and whether sufficient confirmatory and corroboratory material is available to justify conviction? We are conscious of the fact that last seen evidence being a weak type of evidence would not alone be sufficient to justify capital punishment unless corroborated. We have examined the entire evidence to answer the questions as mentioned hereinabove. Din Muhammad (P.W.5) has deposed that while he was proceeding towards his land alongwith Abdul Ghafoor, Hakim Ali (deceased) has going alongwith Muhammad Amin towards Rajbah Zafarkey and after about 10/12 minutes the father of Hakim Ali met them and inquiredabout his son. It is further stated that lie told him that his son was seen in the company of Muhammad Amin who were proceeding towards Rajbah Zafarkey. He was subjected to a lengthy cross-examination but nothing beneficial could be extracted. No enmity or ill-will whatsoever has been alleged against him. He made it crystal clear while answering one of the questions during cross examination that deceased was seen in the company of accused from distance of about 25 Karams from the Rajbah Zafarkey. He also admitted that the said information was communicated to the father of deceased who was searching his son. It is also mentioned that the dead body was entangled in Sarkandaz in the Rajbah. He conceded frankly. that Noor Muhammad complainant was his relative. A careful scrutiny of his deposition would reveal that it was not in any way an inimical of his deposition with any sinister design. His testimony remained unshattered in spite of exhaustive cross-examination and narration as made by him appears to be simple, straightforward and worthy of credence. There is absolutely no justifiable lawful excuse to discard his statement. It. is worth mentioning that he had admitted his relationship with Noor Muhammad complainant but on the score of inter se relationship his testimony could not be brushed aside. It is well-settled by now that "mere friendship or relationship does not make a witness an interested one and testimony of such a witness who otherwise seems to be a truthful witness cannot be rejected on such ground". An interested witness is one who has al motive for falsely implicating an accused, is a partisan and is involved in the matter against the accused. Friendship or relationship with the deceased will not be sufficient to discredit a witness particularly when there is no motive to falsely involve the accused. The principles for accepting the -testimony of even an interested witness are set out in Nazir v. The State (PLD 1962 SC 269). In the present case P.W.10 is not an interested witness as nothing has been brought on record to show that he had motive for falsely implicating the appellants or was personally involved in any act of enmity between the parties. In Khalil Ahmed v. The State (1976 SCMR 161) the testimony of deceased's son aged 15' years was, accepted as he was not personally involved in any act of enmity and his statement was consistent, corroborated by the presence of injuries on his person, human blood-stained articles recovered from the accused and supported by two other witnesses. In Allah Ditta and others v. The State (1970 SCMR 734) the testimony of four P. Ws. out of which two had sustained injuries was accepted although they were related to the deceased because they were natural witnesses, injuries sustained by two P. Ws. proved their - presence and involvement in the occurrence and there was motive on the part of the accused to attack the deceased. Further, their evidence found support from the medical evidence. Reference can also be made to Muhammad Akbar v. Muhammad Khan and others (PLD 1988 SC 274) and Shehruddin v. Allah Rakhia (1989 SCMR 1461 at 1465) where testimony of injured witness was accepted. In assessing the value of evidence of eye-witnesses it is necessary to examine whether in the facts and circumstances of the case their presence at the scene of occurrence in such a situation as would make it possible for them to witness it should be believed and further that whether there is anything inherently improbable or unreliable in their evidence. In Din Muhammad v. Crown (1969 SCMR 777) it was observed that 'to test the testimony of a witness Court should not only consider whether there is consistency in the narrative, but should also consider whether the version is probable or not". Applying these principles to the present case the presence of P. W.10 cannot be doubted. He has suffered injuries. The medical evidence also supports his version. The recoveries also corroborate his statement as besides the arms and empties that were recovered, towels, Chaddar, ""Safa", soap, bottle containing oil and a pair of shoes of Eisab Khan deceased, lend support to the testimony of prosecution witnesses including P. W.10. Nothing has been brought on record to show that he was personally involved in the enmity between the parties. Therefore, his testimony is sufficient to establish the crime against the appellants. Besides this P. W.5 had deposed about the incident relating to chopping off the head of Eisab Khan. There is no .inconsistency or material contradiction to discredit his testimony. The medical report corroborates his statement." (1994 SCMR 1).

7. We have also perused in depth the statement of Noor Muhammad (P.W.6) who highlighted the factual aspects of the alleged incident as incorporated in F.I.R. Its stated. that on his arrival from Lahore his wife Mst. Hajran told him that Hakim Ali had gone alongwith. Muhammad Amin. He further deposed that in spite of his best efforts his son Hakim Ail could not be located. It is also mentioned that during search Din Muhammad and Abdul Ghafoor told him that his son was seen in the company of Muhammad Amin at about 6-00 p.m. while going towards Rajbah Zafarkey and in Dursuant to said information he tried to locate Muhammad Amin who was not found available in his home. It is stated that under the pressing and compelling circumstances he alongwith Hurmat Khan, Bhalli Khan; Yasin Khan, Bashir and Din Muhammad approached Sardar Muhammad Sharif Councillor of the area and informed him about the details of missing of his son and accordingly Muhammad Amin was called who arrived at the Dera of Sardar Muhammad Sharif alongwith his father and relatives and confessed that he had killed Hakim Ali by drowning him in Rajbah Zafarkey and further confessed that his dead body was lying in the Rajbah Zafarkey and at his pointation the same was got recovered. It is further stated that Muhammad Amin also confessed that he had first strangulated his son and subsequently drowned him in the said Rajbah. It is further mentioned that the dead body was found stuck in Sarkandaz which was subsequently taken out. He was also subjected to a lengthy cross-examination but nothing beneficial could be extracted. He made it abundant clear while answering one of the questions in cross-examination that during search he could not find his son as his dead body was stuck underneath the Sarkandaz bushes which was subsequently got recovered at the instance and pointation of Hakim Ali. He refuted the suggestion that on 23-7-1990 the dead body was got recovered while he was searching his son alongwith Din Muhammad and others from Rajbah Zafarkey. He also denied the suggestion that his son Hakim Ali was missing since four days before his dead body could be recovered from Rajbah. He ruled out the possibility of false implication of accused. As mentioned hereinabove he was subjected to lengthy cross-examination but nothing advantageous could be extracted. No enmity whatsoever has been alleged against him. A careful scrutiny of the statement of Noor Muhammad (P.W.6) would reveal that he has supported the version of Din Muhammad (P.W.5) in all material particulars and no contradictions whatsoever could be brought on record rendering any assistance to the case of prosecution. Bashir Ahmad (P.W3) has supported the version of Din Muhammad (P.W.5) and Noor Muhammad (P.W.6) on, all material particulars and deposed in an unambiguous manner about the extra judicial confession made by appellant who confessed that Hakim Ali deceased was done to death by strangulation and subsequently drowned him in Rajbah Zafarkey. He further deposed that he alongwith Bhalli Khan, Hurmat Khan, Yasin, Noor Muhammad and Din Muhammad went to Rajbah. Zafarkey from where at the pointation of appellant the -dead body which was stuck in Sarkandaz got recovered. He also mentioned about the fleeing of appellant from the scene. He was subjected to cross-examination but in spite of various searching questions nothing beneficial could be elicited. He admitted while answering one of the questions during cross-examination that Noor Muhammad (P.W.6) is his elder brother. He also admitted that appellant was not apprehended after confessing his guilt. He refitted the suggestion that Noor Muhammad knew regarding the dead body which was lying in the Rajbah Zafarkey when police was brought by him. He further denied that extra judicial confession was false and a concocted case was got registered. He refuted that he has given a false statement at the instance of his brother who was complainant in the case. The above discussed eye account has fully been corroborated by medical evidence and opinion of Dr. Salimur Rehman. Medical Officer, District Headquarter Hospital, Kasur (P.W.1) is reproduced hereinbelow:--

"In my opinion, the cause of death in this case was asphyxia was due to fracture of hyoid bone and drowning as described above in the external and internal examination of the dead body. Injuries were ante-mortem in nature and were sufficient to cause death in ordinary course of nature. The time between injury and death was within minutes (sudden death) 'and the time between the death and post-mortem was three days.

Two anal swabs were taken from the anus of the dead body which were sealed and so were handed over to the police.

Exh.P.A. is the correct carbon copy of the post-mortam report which is in my hand and signed by me."

8. It is worth mentioning here that Dr. Salimur Rehman (P.W.1) was recalled and re-examined by the learned Single Judge of Lahore High Court, Lahore, arid it was observed as follows:--

"It may be mentioned here that the witness was re-examined by this Court as a Court-witness in order to seek further clarification of his findings in the post-mortem report namely 'conjestion was present around the anus. Area around the anus seems to be swollen'. He deposed that the sodomy had been committed with Hakim Ali (deceased) but he did not mention this fact in the post-mortem report; nor did he so depose before the trial Court because at that time, the result of the anal swabs taken by him at the time of conducting autopsy and sent to the Chemical Examiner through the police, had not, been received. In reply to a question of the learned defence counsel, he deposed that according to his observations the dead body had remained submerged in the water for about three days before it was subjected to post-mortem examination and there could be a possibility of semen, if any, having been washed out from the anus of the deceased by canal water. "

9. We have also examined-the statement of Muhammad Afzal, S.I.P., Raiwaind, Saddar who has conducted the investigation and after completion of necessary formalities the challan was furnished and appellant sent up for trial. A careful analysis of his deposition would show that when he reached at Rajbah by that time the dead body was got recovered and lying on the bank of the said Rajbah. He was also subjected to cross-examination but his testimony remained unshatered. He has mentioned in a categoric manner while answering one of the questions during cross-examination that when he reached at Rajbah Zafarkety more than twenty persons were available there and the dead body of deceased was lying on the ground which was not got recovered by him from the Rajbah. He denied the suggestion that complaint (Exh.P.C.) was got recorded after preliminary investigation. He refuted that the appellant had never confessed his guilt in presence of Sardar Muhammad Sharif. He refuted the suggestion that appellant was falsely implicated in the alleged offence at the instance of complainant and explained that he was having no enmity whatsoever with the accused. He refuted that deceased was murdered about four days prior to the recovery of his dead body.

10. A thorough scrutiny of the evidence as discussed hereinabove would reveal that prosecution has established the following points beyond any doubt:--

(a) Muhammad Ameen (appellant) took away Hakim Ali from his house.

(b) Hakim Ali was lastly seen in the company of appellant.

(c) The dead body was got recovered at the instance of appellant from the place which was exclusively within his knowledge.

(d) The dead body was lying stuck/hidden beneath the Sarkandaz and was not visible.

(e) The dead body of deceased was got recovered from Rajbah prior to the arrival of police.

(t) Non-existence of serious enmity in-between the parties.

11. Now here at this juncture we would like to dilate upon the main and significant question as to whether conviction could have been awarded on the basis of "last seen" evidence. It is to be noted that the above question has been examined time and again in different cases and a few are mentioned hereinbelow for ready reference:--

1969 SCMR 558, 1969 PCr.LJ 1108, PLD 1991 SC 718, 1999 ALD 48(i), PLD 1991 SC 434, 1991 SCMR 1601, 1998 PCr.LJ 722, PLD 1959 S(: (Pak.) 269, PLD 1978 SC 21, 1991 PCr.LJ 956, PLD 1964 Quetta 6, 1971 PCr.LJ 211, 1980 PCr.LJ 164, 1998 SCMR 2669, PLD 1964 SC 67, PLD 1971 Lah. 781, 1972 SCMR 15, 1974 PCr.LJ 463, PLD 1971 Kar. 299, PLD 1977 SC. 515, 1997 SCMR 1416, NLR 1987 Cr. 846, NLR 1988 Cr. 599,

1997 SCMR 1279, PLD 1978 BJ 31 and 1977 SCMR 20.

12. We have perused the dictum laid down in the. Abovementioned .authorities. The consensus seems to be that "last seen evidence itself would 8 not -be sufficient to sustain charge of murder and such evidence further required to, link accused with the murder of his companion i.e. incriminating recoveries at accused's instance, strong motive or proximity of time when both last seen together and time of murder; accused required to explain demise of his companion only when such requirements fulfilled". (PLD 1997 SC 515, AIR 1927 Lah. 541, PLD 1956 FC 123, 1972 SCMR 15, PLD B 1964 SC 167 and PLD 1966 SC 644)..

13. The further consensus in such-like case appear to be that "last seen evidence" carries weight depending upon varying degree of possibility and facts and circumstances of each case. Before inferring guilt merely from inculpatory circumstances; such circumstances, held, must be found to be incompatible with innocence of accused and incapable of explanation upon any other reasonable hypothesis than that of guilt". (PLD 1977 SC 515, AIR 1922 Lah. 1.81, AIR 1922 All. 340, PLD.1955 BJ 1, 1974 PCr.LJ 463, AIR 1932 Lah. 243, PLD 1971 Kar. 299, PLD 1953 FC 214 and PLD 1964 SC. 167).

14. On the touchstone of the criterion as mentioned hereinabove the case in hand has been to answer the above formulated question. In our considered opinion the last seen evidence in this case can be relied upon for the simple reason that there is absolutely no justification to discard the statement of Din Muhammad (P:W.5) who has stated in a categoric manner that deceased was seen in the company of appellant who were proceeding towards Rajbah Zafarkey. It is worthy mentioning that Mst. Hajran the mother of deceased had also told Noor Muhammad.(P.W.6) the father of deceased that Hakim Ali (deceased) had left the house since morning with Muhammad Amin (appellant). The phenomena of substitution is very. rare in such-like cases and there was absolutely no justification for Mst. Hajran to communicate a wrong information to her husband regarding the missing of her real son as there appears to be no reason or logic in it. It may not be out of place to mention here that Din Muhaanmad (P.W.5) has stated that the deceased last seen in the company of Muhammad Amin (appellant) and they both were proceeding towards Rajbah Zafarkey and subsequently the dead body of the deceased was also found from the said Rajbah. We are of the considered opinion that there is absolutely no reason whatsoever to discard the extra judicial confessional statement made by Muhammad Amin in presence of Din Muhammad (P.W.5). Noor Muhammad (P.W.6) and Bashir (P.W.7). We are conscious of the fact that Sardar Muharnmad Sharif the Councillor of the area who was summoned and examined by the learned High-Court as Court witness has not supported the factum of extra judicial confession but it hardly makes any difference for the simple reason that he has not given an honest and true version of the incident so that, his vote bank may not be adversely affected: Be that as it may, his statement lends corroboration to the version of Noor Muhammad (P.W.6) and Bashir (P.W.7) up to the extent C that they had approached him regarding the missing of Hakim Ali (deceased).

The most important factor which cannot be ignored is the recovery of dead body at the pointation of appellant from a place which was in his exclusive knowledge and is sufficient to establish the accusation levelled against the appellant. In this regard we are fortified by the dictum laid down in PLD 1953 FC 214. It is well-settled that factum of last seen evidence requires corroboration and the evidence alone that the deceased having been last seen in the company of the accused itself would not be sufficient to sustain the charge of murder against accused as further evidence was required to link the accused with the crime. The recovery of dead body at the pointation of accused from the place which was exclusively with his knowledge lends full corroboration to the last seen evidence. Besides that medical evidence also supports the eye account as furnished by prosecution witnesses and discussed hereinabove. It may not be out of place to mention here that appellant failed to furnish a plausible explanation that on which point and where the deceased was separated from him and thus, he could not discharge the onus of burden lies on him in view of the provisions as contained in Article 21 of the Qanun-e-Shahadat Order, 1984, (1969 PCr.LJ 1108 and PLD 1977 515). .

15. A careful perusal of the statement of appellant got recorded under section 342, Cr.P.C. would indicate that lie has not denied his acquaintance with the deceased and this family and thus, his visit to the house of deceased's family is not something strange or unusual. On the basis of minor altercation his involvement, as stated by him in his statement, is inconceivable. He has pleaded denial simpliciter which cannot be considered in view of the overwhelming incriminating evidence which has come on record and as discussed hereinabove. So far as the alleged connivance of police with that of complainant is concerned it seems nothing more but mere a bald assertion as he had failed to explain the nature of enmity in-between him and that of police which promoted the latter to involve him in a murder case which is not believable. In view of the proximity of time when Hakim Ali and Muhammad Amin were seen together, probable time of murder,. . recovery of the dead body at the instance of accused from a deserted place, medical evidence, motive, commission of sodomy, strangulation and factum of drowning are sufficient to prove the guilt of appellant beyond the shadow of doubt. The brutal and merciless manner in which a young kid of nine years old was done to death is really pitiable and the question of any leniency as pressed time and again by the learned defence counsel does not arise as already a lenient view has been taken by the learned trial Court.

16. In the light of what has been stated above, we are not inclined to accept this appeal being devoid of merit and the same is rejected.

Q.M.H./M.A.K./M-107/S Appeal dismissed.