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(Against the judgment and order dated 6‑11‑1979. of the Lahore High Court, Lahore, in Criminal Appeal No. 1147 of 1975 and Criminal Revision No. 4 of 1976).

(a) Constitution of Pakistan (1973)-‑

---Art. 185 (3)‑Penal Code (XLV of 1860), S. 302/34‑Leave to appeal granted to complainant to examine whether judgment .of High Court acquitting two accused who were convicted 'under S. 304/34, P. P. C. was in conformity with principles so well recognized for safe administration of criminal justice.

(b) Criminal Procedure Code (V of 1898)‑

----S. 164‑Extra‑judicial confession‑Witnesses before whom extra judicial confession was made, stated that confessing accused bad never before visited their house‑Witnesses had no contact or influence with police and accused did not seek their intercession in the matter‑Witnesses themselves were not sure as to why accused confessed guilt before them‑Witnesses also admitted that their house was at a distance of one and a quarter miles away from the place where occurrence had taken place‑Witnesses could not give explana tion as to the discrepancy in time of accused coming to home‑Prosecution did not make any attempt to explain discrepancy in timings and no suggestion was made that it was a clerical mistake-- Statement trader S. 164, Cr. P.C. could not be used for corrobora tion but only for contradicting witnesses ‑Such factors coupled with fact that witnesses were not in any way in a position of influence or otherwise concerned in the matter made it rather somewhat improb able for accused to go and make a confession before them‑High Court, in rejecting extra‑judicial confession, held had not violated any principle of law or come to a conclusion which was manifestly unsound or unsupportable in circumstances.

(c) Criminal Procedure Code (V of 1898)‑--

‑‑ S. 164‑Extra‑judicial confession‑Confession made in a crowded bazar where many people were present and even Police-- party in uniform was close by, at as short a distance as ten feet, or a few paces‑Such extra‑judicial confession in immediate presence of Police, held; could not be accepted as voluntary and correct.

(d) Criminal Procedure Code (V of 1898)‑-

‑‑ S. 103--Penal Code (XLV of 1860), S. 302‑Recovery‑Occur rence took place on 26th April, 1973‑Evidence on record showing that accused led Police on 1st May, 1973 to Store‑Room which was found locked and key of which was not with him‑Key pf said Store however was obtained on search of person of co‑accused on 2nd May, 1973 in the evening ‑Police officer kept key with himself till 5th May, 1973 when recovery was effected from that Store‑No explanation for delay in effecting recovery given by Investigation Officer except that he had to go to outstation on 2nd May, 1973 in the evening‑Wet earth was alleged to have been recovered from place (Store) where deceased was strangulated‑Held, it was an excep tional recovery, if strangulation had taken place on 28th April, 1973, string and stink may be there but to find wet earth on 5th May, 1973 was something which required an explanation, which was not forth‑coming-‑Recovery could not, therefore, be believed in circum stances.‑[Recovery].

(e) Evidence Act (I of 1872)‑

‑‑ S. 3‑Circumstantial evidence ‑A very high quality of evidence was required and chain of events had to be completed with a view to establish guilt of accused beyond reasonable doubt and to make the plea of his being innocent incompatible with the weight and quality of prosecution evidence ‑Where the prosecution failed to prove circumstances in a manner to make it beyond reasonable doubt, judgment of High Court in rejecting such evidence, held, was in accord with principles recognized for safe administration of criminal justice.

Hafiz S.A. Rehman, Advocate Supreme Court and Imtiaz Muhammad Khan, Advocate‑on‑Record for Appellant.

Sardar Ishaque Khan, Advocate Supreme Court and Akhtar Ali, Advocate‑on‑Record for Respondents Nos. 1 and 2.

Ghulam Ahmad, Advocate Supreme Court instructed by Sh. Ijaz Ali, Advocate‑on‑Record for the State.

Date of hearing : 26th May, 1986.

SHAFIUR RAHMAN, J.‑

Leave to appeal was granted to the complainant, Syed Ahmad Hamdani, to examine whether the judgment of the Lahore High Court, dated 6th of November, 1979 acquitting the two respondents who were convicted under section 302/34, P.P.C. for murdering his son Muhammad Raza aged about eight years, is in conformity with the principles so welt‑recognised for the safe administration of the criminal justice.

Syed Ahmad Hamdani, the complainant, was posted in April, 1974 at Khanewal. He was group inspector of the Special Ticket Examiners, Pakistan Railways. He resided to the Railway Colony at Khanewal. On the 28th of April, 1973, he returned from his duty at 6 p.m. aid found his son Muhammad Raza deceased aged about eight years, a student of Class III to be absent from his house. He searched for him. He contacted his relatives outstation at Sahiwal, Multan, Okara, and Lyallpur and received no information about his whereabouts. On the afternoon of 29th of April, 1973, he was informed by Jamil Ahmed (P. W. 6), a Railway Guard residing in the same colony that he seen Muhammad Raza deceased playing with the children of 'Muhammad Ramzan, respondent, the previous evening. Hamdani took alongwith him Naseemur Rehman (P. W. 7) another Railway Guard and approached Muhammad Ramzan, respondent to ascertain the whereabouts of his son. He was told by Muhammad Ramzan that he had no. knowledge about him though he was in fact playing with his younger sons the previous evening. Muhammad Ramzan was a Vending Contractor of Pakistan Railways at Khanewal Railway Station and was, therefore, known to these functionaries. On the morning of 30th of April, 1973 at 10‑45 a.m. Hamdani lodged a report with Muhammad Rahid, Sub‑Inspector (P. W. 16) at Chowk Signalwala on which a regular first Information Report was registered at the Police Station at 11‑10 a.m. In this report he mentioned about his suspicion that Irfan respondent who was of a bad character might have murdered him or concealed his son. The case was registered initially section 374, P.P.C.

The same day at about 2 p.m. Ishtiaq Ahmad (P. W. 13.) a Railway Ticket Collector and Hanif Ahmad (P. W. 15) another Ticket Collector were in the bazar near the shop of Lal Barbar when they saw the respon dent Ramzan and his son Irfan carrying a gunny bag at a distance of 30‑35 paces from them. They were not facing them and from their sides they both guessed that these were Ramzan and his son Irfan.

The same day at about 3‑15 p.m. Nasimur Rahman (P. W. 7) a Raliway Guard, noticed a .gunny bag lying inside the hedge adjoining quarter No. 431/B, Railway Colony, Khanewal. A foul smell was coming out of that bag which was stained with blood. He also noticed a hand of a child visible from an opening in the bag. He guessed that it contained the dead body of a child. He drafted a report (Exh. P.A.) to that effect and sent it to the police station on which Muhammad Rasheed, Sub‑Inspector (P. W. 16) came to the spot. The dead body was identified by the father and uncle of Muhammad Raza to be his. He prepared its injury state ment and inquest report and sent it for autoposy. The gunny bag (P. 1) and the rope (P. 2) with which it was tied were taken into possession as also the earth on which the gunny bag was lying.

On the 1st of May, 1973 at about 3‑30 a.m. Irfan respondent went to the house of Shamsul Arfin (P W. 8) where Fayyaz Ahmad (P. W. 10) was also present. Irfan told them that on the afternoon of 18th of April, 1973 he had seen the deceased playing with his younger brothers, asked them to go away and had taken Muhammad Raza to his store where he was committing sodomy when the cries of Muhammad Raza attracted his father and a brother Muhammad Usman. In order to avoid ignominy he alongwith Muhammad Ramzan and Muhammad Usman strangulated Muhammad Raza with a rope. The dead body of Muhammad Raza was placed in a gunny bag for disposal and the opportunity for it was available only on 30th of April, 1973 and they threw it away by the side of a quarter near the hedges. He also showed abrasion tin his person which according to these witnesses, he had received while throwing the bag containing the dead body in the hedges. He wanted these witnesses to produce him before the police and they did so at 9 a.m. Muhammad Rasheed, S. I. (P. W. 16) prepared his injury' statement and referred him for medical examination.

On the 2nd of May, 1973 at about 5 p.m. Ghulam Mustafa (P. W. 12) and Haniff (P. W. 15) happened to be near the bus‑stand at Khanewal while on way to Railway Station, Khanewal. They were met by Ramzan, respondent. Umman respondent was also accompanying him. Ramzan told them that in order to avoid ignominy on account of sodomy com mitted by Irfan on Muhammad Raza, he alongwith Irfan had strangulated Muhammad Raza, placed the dead body in a gunny bag and disposed it of by placing it near a hedge close to the quarter of Nasir Ahmed ; a Railway, Guard. Muhammad Usman respondent, according to these witnesses, armed the statement made by his father Ramzan. The police team investigating the case was close by and these two respondents were produced before Muhammad Rashid (P. W. 16). On personal search of Muhammad Ramzan, respondent, a key (Exh. P. 5) was recovered with which on the 5th of May, 1973, the lock of the store‑room was got reopened and on the pointing out of Wan respondent a string (P. 12), one .shoe (P. 7) of Raze were taken into possession and also the blood stained earth.

Dr. Abdul Rashid, Medical Officer, Civil Hospital, Khanewal, per formed autopsy on Muhammad Raza on 1st of May, 1973. at 6‑10 a.m. and found that "Eyes were protruded and tongue was bitten by teeth" The only injury found was an oblique ligature mark in the Upper part of neck extending upto below both ears. According to the doctor, the rope was then present in the neck. According to him, the death was undoub tedly on account of strangulation. Probable time that elapsed between the injury and death was first few minutes of complete strangulation and between the death and post‑mortem examination two to three days. Anal swab was taken into possession and sent to the Chemical Examiner who reported the presence of semen in the swab.

The same doctor examined Irfan on.1‑5‑1973 and reported that Wan was potent and capable of performing sexual intercourse. Irfan's injuries as found by the doctor when he examined him on 1‑5‑1973 were as follows‑

"(1)' An abrasion 1' x 1/3' on the front of right forearm in the middle.

(2) An abrasion 2' x in front on left forearm in the middle.

(3) An abrasion 2/4' X 1/3' on the, back of left forearm in the middle at about the same level at injury No. 2."

The respondents denied all the allegations of the prosecution. They admitted their relationship inter se. As regards the reason for their implication in the case. Irfan respondent stated that the case was false the evidence was fabricated and that the effort was to oust them from their vending contract. They produced one witness in defence viz. Faqee Muhammad (D. W. 1) who was officiating as Station Master, Khanewal on 30‑4‑1973. He had replied to an inquiry of the Divisional Superintendent, Multan, as to who bad been arrested in connection with this murder and he had reported that Ramzan and his son Irfan, etc. were arrested but he admitted that he had done so on account of the fact that the vending shops and stalls at the Railway Station were closed on 30‑4‑1973.

The trial Court listed nine pieces of circumstantial evidence against the respondents Muhammad Ramzan and his son Irfan. The main reliance, was on the extra‑judicial confessions attributed to Ramzan and Irfan respondents which were corroborated in material particulars by the recoveries from the store‑room and from the bag found lying near the hedges. The injuries of Irfan were also found to support the prosecution case. As regards Usman, the trial Court held that there was no extra judicial confession directly attributed to him nor any other piece of evidence corroborating his role. Hence he was given the benefit of doubt and acquitted of the charge. Muhammad Ramzan and Irfan were found guilty under section 302/34, P.P.C. convicted and sentenced. The sentence of death was not imposed as according to the trial Court, they bad no inten tion to cause his death but were led to it on account of certain factors which were not in their anticipation. Both were sentenced to life impri sonment and a fine of Rs. 5,000 half of which on recovery was to be paid as compensation to the heirs of the deceased. Irfan had been separately tried for the offence under section 377, P. P. C. and convicted and sentenced separately.

Two appeals were filed by the convicts and a Criminal Revision by the complainant: The Criminal Appeal No. 1147 of 1975 was filed by Muhammad Ramzan and Irfan against their conviction and sentence under section 302/34, P.P.C. Criminal Appeal No. 21 of, 1976 was filed by Irfan respondent alone against conviction and sentence under section 377, P.P.C. Criminal Revision No. 4 of 1976 was filed by the appellant seeking enhancement of the sentence passed against the respondents on their conviction under section 302/34, P.P.C. All these three matters were disposed of by a common judgment given in Criminal Appeal No. 1147 of 1975. The extra‑judicial confessions attributed to the respondents were not accepted as good evidence on the grounds appearing in the judgment of the High Court as hereunder‑

"The incident was alleged to have taken place in the railway colony, therefore, prima facie it appears to be quite natural that the accused confessed before the railway employees. Novertheless, there is noting on the record to show that the appellants knew these witnesses before. Therefore, it is not acceptable that without any rhyme or reason or previous introduction the accused all of a. sudden on one fine morning decided to make their confession before complete strangers. In such circumstances we are not prepared to rely on the evidence of extra judicial confession."

The other circumstantial' evidence was also not held worthy of credit for the reasons as appearing hereunder‑

"So far as the evidence of last seen and the recovery of, gunny bag is concerned, that is of not much help to the prosecution because nothing was brought on record to show that the gunny bag which the accused were carrying was the same in which the dead body of the child was found.

Similarly, no reliance can be placed on the recovery of shoe P. 7 and string P. 1 because the recovery evidence does not inspire con fidence."

A factor which was considered fairly important was the note Exh. D. W. 1/A showing the arrest of Ramzan and his son Irfan on 30‑4‑1973. In respect of this document, the following observation was made by the learned Judges of the High Court‑

"The defence examined Faqee Muhammad D.W. 1 to prove this. Faqoe Muhammad is an independent witness. Nothing has‑been brought on the record to show that he war the friend of the accused party. If reliance is placed on this witness, then the evidence pertaining to extra judicial confession is to be completely excluded. But irrespective of this evidence, as already observed by us, the evidence pertaining to extra‑judicial confession does not appeal to reason."

Finally the learned Judges came to the conclusion that the circumstantial evidence in this case was not of that type which could form the basis for the conviction of the respondents. The case was held to be not proved beyond reasonable doubt and the respondents were acquitted on acceptance of their appeals while the revision filed by the complainant was dismissed.

There was no petition for Leave to Appeal either by the complainant or by the State against the acquittal of Irfan under section 377 P.P.C. Hence that offence is not now under question. It is only with regard to the murder of Muhammad Raza and the conviction recorded by the trial Court under section‑302/34, 'P.P.C. set aside by the High Court by the impugned judgment which is under examination in this appeal.

So far as the extra judicial confession of Muhammad Irfan respondent is concerned, Shamsul Arfin (P. W. 8) and Fayyaz (P. W. 10) both admitted that the respondent had never before visited the house of Shamsul Arfin. He had no contact or influence with police and Irfan did not seek his' intercession in the matter. He stated "I cannot say as to why Muhammad Irfan accused confessed the guilt before me on that day". He also admitted that his house was at a distant of one and quarter miles away from the Railway Colony where the occurrence had taken place and the investigation was going on. He was confronted with his statement before the committing Magistrate where he was positive that Irfan had come to his house at 3 a.m. and it was at that hour in the presence of Fayyaz that he had confessed the guilt. This discrepancy with regard to time has found no explanation and the only one provided was by the trial Court in the Wowing terms‑

"It 'may be observed that no doubt the time of the arrival of Muhammad Arfan accused at the house of Shamasul Arfin P. W. on 1‑5‑1973 was recorded by the C.M. as 3‑00 a.m. yet, the same seems to be simply a clerical mistake or slip of pen committed by that Court. That statement of this witness was undeniably recorded by a magistrate under section 164, Cr: P. C. on 1‑6‑1973 wherein he got recorded the time of the arrival of the accused as 8‑30 a.m. Curiously enough the learned defence counsel then appearing before the C.M. did not confront this witness on this point with his previous statement recorded under section 164, Cr. P.C. What the learned counsel for the defence did was that he got this time written by the C.M. underlined and initialed by him on 21‑11‑1973."

There was another aspect of this extra‑judicial confession and the making of it before these two witnesses. Fayyaz (P.W. 10) stated that his duty hours on that day were from 12 mid‑night to 8 a.m. and that of Shamsul Arfin from 8 a.m. to 4 p.m. Both Examiners ; sine of ticket and the other of train. This too was explained by the trial Court as follows‑‑

"The duty hours of both the witnesses might be still on at 8‑00 a.m. on 1‑5‑1973 but it cannot be asserted with certainty that Fayyaz Ahmad could not come to the house of Shamasul Arfeen earlier at 8‑00 a.m. on that day after performing his duties and Shamsul Arfeen could not be late in attending his duties on 1‑5-1973 of account of the arrival of Fayyaz Ahmad P.W. at his house. The credibility of these witnesses stands unimpeached on record. Doubtless to say that these witnesses have been once the junior colleagues of Saeed Ahmad Hamdani complainant who has sin been retired from the railway service. yet the fact remains that the accused person has neither suggested nor proved any type of the hostility or enmity towards him."

Such a treatment of the discrepancies in the prosecution case prompt the counsel of the respondents who filed their appeal in the High Court to take up a ground that "the learned trial Judge bas prejudged the whole case as if he was to write an apology for a foregone conclusion" There was no attempt to explain the discrepancy in the timings. There was no suggestion by the prosecution that it was a clerical mistake. There was no question of seeking corroboration from the statement recorded under section 164, Cr. P.C. because it could be used not for corroboration but for contradicting the witnesses. This explanation of a clerical mistake as offered by the trial Court does not find support in the evidence and is total negatived by the fact that the committing Court when the witness mad a mention of 3 a.m. it was pointedly brought duty and got noted at the very stage to make any deviation or departure at a future date difficult if not impossible.

The duty hours, of these two witnesses being conflicting and it being not the case of anyone of them that he was not on duty that day the presence of the two together looking out for a plot at that hour remain un‑explained. These factors coupled with the fact that they being not in any way in a position of influence or otherwise concerned in the matter made it rather somewhat improbable for Irfan to go and make a confession before them. In view of such a background of the case it cannot be said that the High Court in rejecting the extra‑judicial confession has violated any principle of law or come to a conclusion which is manifestly unsound or unsupportable.

As regards the confession of Muhammad Ramzan both the witnesses, namely, Ghulam Mustafa. (P. W. 12) and Hanif Ahmed (P.W. 15) have admitted that it was made in a crowded bazar when many people war present and that even the police party in uniform was closeby, as short distance as ten feet, or a few paces. Such an extra judicial confession in the immediate presence of the police cannot be accepted as voluntary and correct.

As regards the recoveries, the evidence has been led to show that respondent Irfan led the police party on the 1st of May; 1973 to the store room which was found locked and the key of which was not with him. The police party returned without accomplishing anything further though their visit to the store must have been on some statement made by Irfan, or in any case what bad already come out in the form of the alleged extra judicial confession. The key of the, store was obtained on search of the person of Muhammad Ramzan respondent at about 4 or 5 p.m. on 2nd of May, 1973. The key was taken into possession by the police officer the same day. It was kept with himself till 5th of May, 1973 when the recovery was affected from that store. Except for his statement that on the evening of 2nd of May, 1973 the Investigating Officer had to leave for Lahore, no other explanation is found for this delay in the recovery. What is further to be noticed is that from the store‑room wet earth was recovered from the place where the deceased had been strangulated. It is an excep tional recovery. If the strangulation had taken place on 28th of April, 1973, the string and the stink may be there but to find wet earth on the 5th of May is something which required an explanation and none is forthcoming.

The only other pieces of evidence are the carrying of the bag by Ramzan and Irfan for its disposal witnessed by Ishtiaq (P. W. 13) and Hanif Ahmad (P. W. 15), the injury on the person of Irfan and the deceased being last seen with Furqan and Ghufran, the two sons of Raman respon dent. Not only the bag which was being carried has not been identified by these witnesses as the one which was recovered with the dead body inside Ishtiaq admitted that "We saw the accused from their sides. We had not seen their faces when they were carrying the gunny bag guessed from that distance that Muhammad Ramzan and Muhammad Usman accused were carrying gunny bag at that time." Hanif Ahmad (P. W. 15) also stated that "we saw the accused persons carrying the gunny bag from a distance of 50 to 55 yards from their back side. Their faces were not towards us nor we have any conversation with them". The injuries on the person of Irfan have already been indicated. The explanation for these is sought to be provided from the extra‑judicial confession that though Ramzan and Irfan both carried the bag containing the dead body while disposing it of in the hedge it was only caused to Muhammad Irfan. The injuries do not lead to any such irresistible conclusion and none was suggested to the doctor who examined them.

The evidence of last seen does not play any decisive rote in this case because the deceased was never seen in the company of the respondents. All that is urged was that he was seen last playing with other children of his age group and the children were the sons of Ramzan and they are not involved in any manner.

The case of the prosecution being one of circumstantial evidence a very high quality of evidence was required and the chain of events had to be completed with a view to establish the guilt of the respondents beyond reasonable doubt and to make the plea of their being innocent incompatible with the weight and quality of the prosecution evidence. We find that the prosecution cases does not achieve that distinction of proving the circumstances in a manner to make it beyond reasonable doubt. We find that the judgment of the High Court is in accord with the principles recognised for the safe administration of criminal justice. The appeal fails and is dismissed. The respondents, if not required in any other case, shall be released forthwith.

M. B. A. Appeal dismissed.

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