BINYAMIN alias KHARI and others Versus State

JUSTICE CH. IJAZ AHMED (MEMBER).--- We intend to decide the captioned petitions by one consolidated judgment arising out of the same impugned judgment of Federal Shariat Court wherein appeals filed by the petitioners against their conviction were dismissed.

2. Brief facts out of which the present petitions arise are that petitioners are involved in case F.I.R. No.760 which was registered under section 302/34, P.P.C. at Police Station Saddar, Faisalabad on the complaint of Dost Muhammad P.W.8. Facts according to the F.I.R. and noted by the learned trial Court in the impugned judgment are as follows:

"On the preceding night (of the day of registration of the case), at about 7-00 p.m., complainant Dost Muhammad was present at his house in Chak No.217/RB along with his family members when there came at the house accused Younis alias Bana, Jaggu and Binyamin alias Khari and took away his son Asif Ali (10-11) on the pretext of playing. When it was too late for Asif Ali to return home, the complainant and his brother Khadim Hussain (P.W.10), getting worried, set out to search for him. During that course, they came across Muhammad Yousaf (P.W.9) at bus stop of the Chak who told them having seen Asif Ali in the company of the three accused. No clue of Asif Ali could be available. It was eventually in the following morning at about 8-00 a.m. when information was received that the dead body of Asif Ali was lying in a room of Government Boys Primary School of Chak. Thereon the complainant, his brother Khadim Hussain and Muhammad Yousaf P.Ws. went at the spot and found Asif Ali lying there dead. Statedly the kid was murdered by all the three accused without any justification."

3. After investigation, the Investigating Agency submitted challan before the competent Court. The learned trial Court completed the legal formalities such as framing of charge, recording of evidence and statement of accused. The learned Sessions Judge, Faisalabad vide its judgment, dated 17-9-2001 convicted the petitioners under section 302(b), P.P.C. and sentenced them imprisonment for life each with compensation of Rs.50,000 each to the L.Rs. of the deceased in accordance with their legal shares or in default of payment of compensation to further suffer six months' R.I. with benefit of section 382-B, Cr.P.C. Petitioners being aggrieved filed Criminal Appeals before the Federal Shariat Court which were dismissed vide impugned judgment as mentioned above. Hence these petitions.

4. The learned counsel for the petitioners submits that both the Courts below have erred in law to convict the petitioners on the basis of circumstantial evidence in the shape of last-seen which is always considered as a weak type of evidence. He further submits that the occurrence was unseen. He further submits that dead body was recovered from the school which is at a distance of 40 feet from the house of the complainant. This fact was not considered by both the Courts below in its true perspective. He further submits that both the Courts below had erred in law to observe that medical evidence corroborated the evidence of the last-seen. He further maintains that there is political groups in the village in question. Petitioners are involved in a case under the direction of Ahmad who is opponent of Hussain Lara as Younis alias Banna and Jaggu alias Jagga are servants of Hussain Lara. He further submits that this fact was admitted by Dost Muhammad P.W.8 in his cross-examination, therefore both the Courts below were erred in law to discard defence plea.

5. We have considered the submissions made by counsel for the petitioners and have perused the record. All the contentions raised before us are exactly the same which were raised before the learned Federal Shariat Court and were rejected with cogent reasons as evident from paragraphs 15 to 17 of the impugned judgment. Both the Courts below have extensively gone through the entire evidence with a positive conclusion that the prosecution has proved its case against the petitioners and there is enough evidence to connect commission of crime with the petitioners. It is an admitted fact that father of deceased P.W.4 Dost Muhammad had seen the deceased Asif Ali his son at the time of his departure from the house along with the petitioners. Muhammad Younis P.W.9 had also seen the deceased Asif Ali along with the petitioners at Bus stop heading towards the school. Both these witnesses had faced lengthy cross-examination but the defence failed to shake their veracity. Both the prosecution witnesses have made statements in line with each other. It is pertinent to mention here that both the Courts below after proper appreciation of evidence on record believed the statement of departure as stated by father of the deceased and deceased was seen lastly with the petitioners by Muhammad Yousif P.W. with cogent reasons. Both the Courts below had believed the prosecution story qua the recovery of the dead body from the school and also believed the medical evidence. It is pertinent to mention here that in the present case, prosecution has heavily relied upon the following pieces of evidence:--

(i) Departure evidence; (ii) Last-seen evidence;

6. The aforesaid pieces of evidence are normally considered as weak evidence yet capital punishment can be awarded if an unbroken chain of circumstances from the stage of last-seen evidence till death of the victim is established by conclusive evidence. In the present case, as mentioned above, there is a double presumption of last-seen evidence consisting of departure and lastly seen which was duly corroborated with the pieces of evidence on record in the shape of recovery of dead body and medical evidence which were believed by the Courts below in the impugned judgment. It is a settled law that capital punishment can be awarded on the basis of circumstantial evidence subject to the condition that it connects the accused person with the offence as law laid down by this Court in various pronouncements. See Sarfraz Khan's case 1996 SCMR 188, Jaffar Ali's case 1998 SCMR 2669 and Khurshid's case PLD 1996 SC 305. Since long circumstantial evidence is one of the recognized modes to find out the guilt or innocence of the accused person. Awareness has been given to the world 1400 years ago by the Almighty Allah in the Holy Book of Qur'an in Sura-e-Yousif in Verses Nos.26, 27 and 28. The relevant urdu transaction of the said Verses are as follows:--

It means in case the circumstantial evidence appeals to logic and reason then it is sufficient piece of evidence to connect the accused with the commission of offence. Both the Courts below have given concurrent findings of fact after proper appreciation of evidence qua the guilt of the petitioners. This Court does not normally, interfere in the concurrent) conclusions arrived at by the Courts below while exercising!, constitutional power.

7. For what has been discussed above, these petitions have no merit and the same are dismissed. Leave refused.

S.A.K./B-1/SC Leave refused.