SANWAL Versus State
SADAQAT ALI KHAN, J .---Appellant (Sanwal) has been tried by learned trial Court in case FIR No.525 dated 25.12.2015 offences under sections 302, 377, 364-A, 367-A, 201, P.P.C. registered at Police Station Harappa, District Sahiwal, and was convicted and sentenced vide Judgment dated 29.09.2017 as under:--
Sanwal (appellant) under section 302, P.P.C.
Sentenced to DEATH as Tazir for committing Qatl-i-Amd of Muhammad Hussain (deceased) with compensation of Rs.5,00,000/- payable to legal heirs of the deceased under section 544-A, Cr.P.C. which was ordered to be recovered as arrears of land revenue in default whereof to further undergo simple imprison-ment for 6-months. under section 201, P.P.C.
Sentenced to undergo 7-Years S.I. with fine of Rs.20,000/- in default whereof to further undergo simple imprison-ment for 1-month.
Benefit of section 382-B, Cr.P.C. was also extended to the appellant.
2. Appellant (Sanwal) has filed this Criminal Appeal against his conviction and learned trial Court has sent Murder Reference for confirmation of his death sentence or otherwise, which are being decided through this single judgment.
3. Brief facts of the case have been stated by the complainant Muhammad Saeed (PW-3) in his statement before learned trial Court, which is hereby reproduced as under for narration of the facts:-
"Stated that on previous 12-Rabi ul Awwal, my two sons were playing in the street in front of my house, my elder son came home, whereas the younger did not come. I along with my wife started searching for my younger son Muhammad Hussain. We searched in all the streets and Mohallah but could not find my son despite the announcement in the loud speaker of the mosque. There was no clue of my son. We searched my child till 3:00 A.M. We also searched my son in the nearby villages. My son was having a Bhalu toy with him. We saw a bag which was tied with the electric wire in the pond situated at the distance of half K.M. from my house. We opened the said bag and saw the dead body of my son. Thereafter, police came to the spot and took the dead body of my son with them. I also went to the police station along with other relatives. I submitted application Ex.PA."
4. Arguments heard. Record perused.
5. Muhammad Hussain aged about 3 years went missing on 24.12.2015. During search, on 25-12-2015 at 9:00 a.m., his head body was found lying in the pond near the house of Muhammad Akhtar (not PW), FIR was lodged on the same day (25.12.2015) at 9:45 a.m. on the written application of his father Muhammad Saeed (PW-3) against unknown accused. No person from the prosecution claims to be the eye-witness of the occurrence rather case of the prosecution is based on circumstantial evidence which is categorized as under:--
(i) Evidence of Wajtakkar
Muhammad Atif (PW.7) and Muhammad Habib (PW-8 stated in their statements before learned trial Court that on 24.12.2015 at 8/9 p.m., they had some conversation meanwhile from the street to the side of pond appellant while running came there, he being perturbed passed near them. Muhammad Atif (PW-7) admitted in his cross-examination that Saeed complainant and Mustafa Arain cited him as witness in this case after taking his consent. Above story is neither plausible nor believable. Even otherwise, evidence of Wajtakkar being a weak type of evidence is not believable in absence of independent corroborative piece of evidence which is conspicuously missing in the present case. This witness got recorded his statement under section 161, Cr.P.C. on 30.12.2015 with much delay from relevant dates shattering his credibility. (2003 SCMR 477) "Muhammad Mansha Kausar v. Muhammad Asghar and others".
(ii) Last Seen Evidence
Mustafa (PW-13) stated in his statement that it was Eid Milad un Nabi (PBUH) 2015 at about 4:30 p.m., he saw Muhammad Hussain deceased in the company of Sanwal while going towards bazar. This witness did not disclose specific place of seeing the deceased in the company of the appellant. Last seen evidence is also weak type of evidence which is procured at any time during the investigation when direct evidence is not available to the prosecution and is not believable as statement of this witness was recorded on 30.12.2015 with sufficient delay, (2008 SCMR 1103) "Altaf Hussain v. Fakhar Hussain and another".
(iii) Extra Judicial Confession
Ch. Ghulam Mustafa (PW-1) and Shahzad Ahmad Khan alias Sajid Khan (PW-2) stated in their statements that after 5/6 days of 12 Rabi ul Awal of last year (17.12.2016, the date of recording of statements of these witnesses before learned trial Court) at about 10:00 a.m., they were present at their Dairy Farm meanwhile appellant came there and made confession regarding the present occurrence. They did not state that appellant was armed with any weapon at the time of making extra-judicial confession but he was not apprehended at that time. Extra-judicial confession is also weak type of evidence which can be procured at any time during the investigation whenever direct evidence is not available to prosecution. Above story is not believable. (2016 SCMR 274) "Azeem Khan and another v. Mujahid Khan and others".
(iv) Recovery of the articles
Muhammad Saeed (PW-3) stated in his statement that appellant during investigation got recovered syringe, ash, 'Bhalu' toy and wire from the deserted room accessible to everyone, hence, this recovery is not believable.
(v) Medical Evidence
Medical evidence may confirm the ocular evidence with regard to the seat of the injury, nature of the injury, kind of weapon used in the occurrence but it would not connect the accused with the commission of crime: 2008 SCMR 1103 "Altaf Hussain v. Fakhar Hussain and another".
6. Appellant has already been acquitted in offences under sections 364-A, 377, P.P.C. through impugned judgment which has not been challenged.
7. The law is settled by now that one tainted piece of evidence cannot corroborate another piece of tainted evidence because if this is allowed to be done then very necessity of corroboration would be frustrated. (2009 SCMR 1410) "Mursal Kazmi alias Qamar Shah and another v. The State".
8. In view of the above discussion, we entertain serious doubt in our minds regarding participation of the appellant in the present case. It is settled principle of law that for giving benefit of doubt, it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in the prudent mind about the guilt of the accused, then he would be entitled to its benefit not as a matter of grace or concession, but as of right.
9. For the foregoing reasons, this appeal is allowed, conviction and sentences of the appellant (Sanwal) awarded by learned trial Court through impugned judgment are hereby set-aside and he is acquitted of the charges. He is directed to be released forthwith, if not required in any other case. Murder Reference is answered in NEGATIVE and death sentence of appellant (Sanwal) is NOT CONFIRMED.
JK/S-80/L Appeal allowe