RASAB KHAN vs THE STATE

' ABDUL HAMEED DOGAR, J.---This appeal with the leave of the Court arises out of judgment, dated 26-12-2001 passed by a learned Division Bench of Lahore High Court, Rawalpindi Bench, Rawalpindi, whereby Criminal Appeal No, 201-T of 1999 filed by the appellant was dismissed and the sentence of death on two counts for committing murder of minors, namely, Ghulam Haider and Wazir Ali awarded under section 302(b), P.P.C. And sentence of imprisonment for life on two counts for committing sodomy with both the deceased awarded under section 377, P.P.C. By Special Court Anti-Terrorism, Rawalpindi Division and Islamabad Capital Territory were maintained.

2. For safe administration of criminal justice, leave to appeal was granted on 15-10-2002 to consider as to whether the facts and circumstances of the case as established on the record, conviction could be based on extra-judicial confession.

3. Briefly, stated, the facts leading to the filing of the instant appeal are that on 2-6-1998 complainant Aftab Haider while going to Haranpur Bazar alongwith his son Ghulam Haider deceased aged about 5 years when reached near the shop of Hasnat Ahmed, Wazir Ali a minor boy of similar age met his son Ghulam Haider and both started playing together, whereas he proceeded towards Bazar. He on return found the boys missing and on reaching home inquired about his son from his wife who told that he had not returned. Thereafter complainant went to the house of boy Wazir Ali to inquire about his son but he too was missing, as such, they started their search but could not find any clue. It was on 4-6-1998, complainant got information that dead body of minor Wazir Ali was lying in the field of Raja Riaz, as such, he proceeded there and found that his dead body was lying at the Banna of the land of Raja Riaz. Thereafter the complainant and his companions started the search of minor Ghulam Haider and found his dead body lying at some distance on the Eastern side. Thus a criminal case under sections 302/377, P.P.C. Read with section 12 Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as `the Ordinance') and section 6 and 7 of the Anti Terrorism Act, 1997 (hereinafter referred to as 'the Act') was lodged at Police Station Pind Dadan Khan at the behest of complainant Aftab Haider.

4. Appellant Rasab Khan was suspected to have committed the alleged offence, as such, was arrested in the instant case. During the investigation, he led to the recovery of the two pairs of Sleepers of deceased Ghulam Haider and Wazir Ali and also pointed out the place where he confined both the minors and committed sodomy with them. He also pointed out the place where he threw the dead bodies of deceased after committing their murder.

5. The prosecution in order to prove its case examined as many as 13 prosecution witnesses.

6. On 4-6-1998 P.W.6 Dr. Ikhlaq Hussain Shah, Medical Officer, conducted autopsy on the dead bodies of the deceased. According to him, firstly the deceased were subjected to the act of sodomy and thereafter were done to death by throttling. He prepared one phial containing rectal swa bs of the deceased, sealed the same and then handed over to Constable Sikander Hayat.

(P.W.5) Dr. Fakhuruz Zainan, Medical Officer, who examined the appellant on 8-6-1998 found him fully potent to perform the act of sexual intercourse.

7. The appellant in his statement recorded under section 342, Cr.P.C. Denied the case of prosecution and pleaded innocence. He, however, examined himself on Oath under section 340(2), Cr.P.C. But did not lead any evidence in defence. On conclusion of trial the learned trial Court found him guilty and convicted and sentenced him under section 377 and 302(b), P.P.C. As stated above, whereas acquitted him from the charges under sections 6 and 7 of the Act. The sentences of life imprisonment were ordered to run concurrently.

8. On evaluation of evidence on record, the learned Lahore High Court dismissed the appeal of the appellant and maintained his conviction and sentence and also dismissed the criminal revision petition of the complainant whereby he had sought for the conviction of the appellant under section 12 of the Ordinance read with section 363, P.P.C.

9. We have heard Mr. Javed Aziz Sindhu, learned Advocate Supreme Court for the State and have gone through the record and the proceedings of the case in minute particulars.

10. Mr. Javed Aziz Sindhu, learned Advocate Supreme Court for the appellant mainly contended that the learned Courts below convicted the appellant solely on the basis of retracted extra-judicial confession a weak type of evidence in absence of independent corroboration by any other piece of circumstantial evidence. As regards P.Ws. Muhammad Afzal and Fayyaz Hussain before whom the appellant allegedly confessed his guilt were neither related to the complainant and the deceased nor were in a position to extend any help to him, therefore, there was no occasion at all for the appellant to have approached them and confessed his guilt. According to him the dead bodies of the minors were found lying in the field which were not recovered at the instance of the appellant and were in fact traced out prior to his arrest. Even the recovery of Sleepers of the minors deceased from the house of appellant were not at all an incriminating piece of evidence as there were no specific marks identification over them, therefore, these being the articles of common pattern were foisted upon him. He lastly contended that the appellant was merely arrested as a suspect due to his earlier involvement in a similar type of case lodged under section 377, P.P.C., from which he was acquitted in appeal.

11. On the other hand Ms. Afshan Ghazanfer, learned Advocate Supreme Court for the State vehemently controverted the above contentions of the appellant and contended that the prosecution has successfully established its case against the appellant beyond any shadow of doubt by producing strong circumstanial evidence in the shape of extra-judicial confession furnished by independent witnesses, namely Muhammad Afzal and Fayyaz Hussain, recovery of two pairs of Sleepers of the deceased from his house, pointing out the place of confinement and committing sodomy and also the places from where the dead bodies of the minors were recovered.

12. Admittedly, the incident was unwitnessed one. Even as per case of the prosecution no one had seen the minor-deceased in the company of appellant prior to the incident, as such, we are left with the evidence of retracted extra-judicial confession of appellant said to have been made before P.Ws. Namely Fayyaz Hussain and Muhammad Afzal. In order to judge the veracity of the above said piece of evidence we must have a glance over the manner in which the evidence of P.Ws. Muhammad Afzal and Fayyaz Hussain was procured. It would be pertinent to refer here that they were neither respectable persons of the locality nor enjoyed such a commanding position so as to have an access or influence on the police or on the relatives of the deceased to get pardon for the appellant. In such situation, what prompted the appellant to confess his guilt voluntarily without any duress, coercion or inducement leaves room for consideration. In such circumstances their evidence requires strict. Scrutiny. According to their own version, it was on 5-6-1998 at 10-00 a.m. While they were available in the home, appellant appeared before them and on his own confessed the guilt and asked them to obtain pardon from the fathers of the two deceased, yet they kept silent and did not intimate the same either to the police or to the parents of the deceased. On the contrary, they left the appellant to go free and themselves went to Hospital at Malikwal for getting the medical treatment of mother of P.W. Fayyaz Hussain.

13. Not only this but as per statement of Muhammad Afzal, they came back at mid-night after getting an emergency treatment of the mother of P.W. Fayyaz Hussain in the hospital. Thus it is beyond imagination that a prudent man on coming to know of such a serious type of episode would prefer to keep silent for 2/3 days and will not report the matter either to the relatives of the deceased or to police. Be that as it may, it would be thus quite unsafe to rely upon such type of evidence particularly on capital charges. Irrespective of their above conduct, it has also come on record that P.W. Muhammad Afzal was involved in a theft case and was neither Lamberdar nor Councillor of the area. There was also an old existing enmity between the parties. P.W. Muhammad Afzal had admitted in evidence that Muhammad Aslam the relative of the appellant had got registered a criminal case against him, his brother and nephew. He also admitted that a quarrel had taken place between Mirza Khan his brother-in-law and the appellant about 15/20 years prior to the incident and a case under section 324, P.P.C. Was registered. Another important aspect which emerges from the statements of these two witnesses is that they in unequivocal terms told the appellant that they would not make any promise with him for persuading the relatives of the deceased to get any concession or pardon for him.

15. From the above unnatural and inhuman conduct shown by the above said witnesses, there is no hesitation to hold that their evidence is not worth reliance. It is well-settled principle of law that extra-judicial confession is a very week type of evidence and conviction cannot be awarded on the basis of such evidence unless the same is corroborated by a strong piece of evidence. Admittedly, neither the dead bodies of the two deceased nor any other incriminating piece of evidence was recovered by the police during the investigation at the behest of appellant. The dead bodies were in fact found and recovered prior to his arrest. Irrespective of this, the evidence of recovery of Sleepers from the house of the appellant would be of no help to the case of the prosecution, as the same being the articles of common pattern easily available, thus the possibility of foisting of the same could not be ruled out. Even such type of discovery at the behest of the appellant or pointing out of the place of occurrence to police during custody could not be said to be of discovery of fact for attracting the provisions of Article 40 of Qanun-e-Shahadat Order, 1984. This Court in the case of Ziaul Rehman v. The State (2000 SCM R 528) while dealing with the similar situation, did not rely upon the evidence of extra-judicial confession and recoveries and acquitted the accused. Similarly in the case of Sarfraz Khan v. The State (1996 SCM R 188), this Court emphasized the use of utmost care and caution in the cases while analyzing the evidence of extra-judicial confession.

16. From the above resume, we are of the considered opinion that the prosecution has miserably failed to prove the case against the appellant, as such, the appeal is allowed and the conviction and sentence passed against him by the learned Courts below are set aside. The appellant is acquitted from all the charges. He shall be released forthwith, if not required in any other case.

17. These are the reasons for our short order of even date issued earlier.