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Criminal Appeal No. 241/1 of 1985 and Criminal Revision No. 2/1 of 1986, decided on 16th June, 1986.

---S. 12--Penal Code (XLV of 1860), Ss. 377 & 302--Appreciation of evidence--Allegation of sodomy and murder--Case not of a direct evidence--Conduct of complainant, father of victim deceased was not natural and his evidence was not confidence inspiring on account of improvements and most of the facts which according to him were in his knowledge at the time of recording F.I.R. he had not mentioned before police and facts disclosed for the first time in Court were of paramount importance--Conviction and sentence of accused set aside in circumstances.

---S. 12--Penal Code (XLV of 1860), Ss. 377 & 302--Appreciation of evidence--Case not of a direct evidence--Conduct of complainant not natural and his evidence not confidence inspiring--Allegation of sodomy and murder--Evidence of last seen is a weak type of evidence and is not by itself sufficient for conviction.--[Evidence].

---S. 12--Penal Code (XLV of 1860), Ss. 377 & 302--Case not of a direct evidence--Allegation of sodomy and murder--Plea of enmity- Suspicion--Appreciation of evidence--Conduct of complainant not natural and his evidence not confidence inspiring--Enmity being a double-edged sword can equally prompt a person to implicate his adversary--Suspicion, whatsoever high it may be cannot be substituted for proof--Medical evidence may prove the offence but not that accused has committed--Case being that of no evidence on record, Trial Court, held, could not have reached a verdict of guilty against accused in circumstances.

Fazal Elahi Siddiqui for Appellant (in Criminal Appeal No. 241/I of 1985).

Syed Zia Hussain for the State (in Criminal Appeal No. 241/1 of 1985)

Altaf Elahi Sheikh for Petitioner (in Criminal Revision No. 2/1 of 1986).

Date of hearing: 16th June, 1986.

Muhammad Ilyas son of Muhammad Nazir Kashmiri, resident of Bhopalwala, District Sialkot, now convict in jail has filed this appeal (Criminal Appeal No. 241/1 of 1985) against the order of conviction, dated 6-11-1985 passed by Mr. Riazul Hassan Alvi, Additional Sessions Judge, Rawalpindi whereby he has been convicted under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) and sentenced to life imprisonment and a fine of Rs.5,000 and in default for one year's R.I. and under section 377, P.P.C. for 10 years and a fine of Rs.5,000, in case of default of payment of fine for one year's R.I. and also under section 302, P.P.C. imprisonment for life and a fine of Rs.5,000, in default of fine to undergo R.I. for one year. He has been further directed to pay a compensation of Rs.10,000 as provided under section 544-A, Cr.P.C. to the legal heirs of the deceased. The amount of compensation if not paid shall be recovered as arrears of land revenue from the property of the accused in accordance with the law. If the accused/convict has no property in his own name, then he shall have to further undergo R.I. for six months. The amount of fine, if realized, half of the same shall be given to the legal heirs of the deceased and the remaining half shall be deposited in the Government Treasury. All the sentences have been ordered to run concurrently. Maulvi Walayat Khan son of Sikandar Khan, the father of the deceased (Munir) is also aggrieved of the order of the Additional Sessions Judge and has filed the revision (Criminal Revision No. 2/1 of 1986) and has prayed that the orders be modified to the extent of sentence which should be enhanced from life imprisonment to sentence of death under section 12 of the Ordinance and 302, P.P.C. and to life imprisonment from 10 years' R.I. under section 377, P.P.C. and the amount of compensation under section 344, Cr.P.C. may also be enhanced. This judgment shall dispose of both the appeal and the revision.

2. On 4-11-1981 the petitioner Walayat Khan father of deceased Muhammad Munir came to the Police Post Race Course, Rawalpindi and reported that he is residing in his own house at Peoples Colony, Rawalpindi with his family. On 3-11-1981 at about 3-00 p.m. his son Muhammad Munir aged 9/10 years who was student of 4th Class disappeared from the house, he (Munir) was searched here and there and announcement was also made through loud-speaker from the mosque but in vain. On 4-11-1981 at about 7-00 a.m. he received an information that the dead body of his son Muhammad Munir is lying under the stairs of under-construction house of Subedar Major Hayat Muhammad in Lane No. 9, Peoples Colony, Rawalpindi. The complainant reached at the spot and found that his son is dead. He has no enmity in the Mohallah with anybody. However, on 23-4-1981 Muhammad Ilyas son of Muhammad Nazir resident of Kamalabad Bakra Mandi, Rawalpindi had tried to commit sodomy with his deceased son and he got registered a case against said Muhammad Ilyas who was challaned in that case and was facing the trial in a Court. In that case complainant and his deceased son had appeared as witness against Muhammad Ilyas in the Court of Mr. Khair Muhammad Tiwana, Magistrate First Class, Rawalpindi and the next date of hearing was 5-11-1981. The report was entered in the Thana by Mumtaz Khan S.I. (P.W.10) and he proceeded to the place of occurrence taking with him Muhammad Zaman A.S.I- Muhammad Nawaz, Muhammad Aslam, Zafarullah constables and commenced the proceedings under section 174, Cr. P. C . prepared the injury statement of the deceased, inquest report and took in possession the dead body and sent the same for autopsy under the escort of constables Muhammad Aslam and Zafarullah. At D.H.Q. Hospital, Rawalpindi the post-mortem examination was conducted by Dr. Akhtar Khan, who expressed the opinion that the death was caused due to Asphyscia. Three anal swabs of the deceased were also taken for examination of Chemical Examiner and sealed into a parcel. Muhammad Aslam F.C. handed over to Mumtaz Khan two sealed parcels containing viscereas and swabs. He also handed over to him the last worn clothes of the deceased i.e. shirt EXh.P.1, Shalwar Exh.P.2 and Sweater Exh.P.3 which were taken into possession and the memo. prepared in that behalf was attested by the witnesses and these articles were handed over to the Muharrir/ H . C . Muhammad Islam for safe custody in Malkhana and the complaint was then sent for formal registration of the F.I.R. through F.C. Muhammad Nawaz. On 5-11-1981 the rough sketch of the place of occurrence and notes and drawings were prepared and signed by Mumtaz Khan (P.W.10). The accused/ appellant and Sultan Mehmud (acquitted accused) were arrested. The site plan was got prepared by him from Muhammad Akram, Draftsman (P.W.8). The sealed envelope and sealed box containing viscereas were given by Muhammad Islam (P.W.9) to Zafarullah F.C. (P.W.13) for onward transmission to the office of the Chemical Examiner Punjab, Lahore. Since Mumtaz Khan was transferred, the investigation was entrusted to Muhammad Anwar A.S.I. (P.W.14) whoon 7-11-1982 recorded the statements of (P.W.3) Mst. Bani Begum, wife of the complainant and mother of the victim, Aslam (P.W.4), Sikandar Khan (P.W.2) and Khizer Hayat (P.W.6) and Abid (P.W.7). After the completion of the challan, the file was handed over to the S.H.O. (Tanveer Hayat) for submission in Court and the appellant and Sultan Mehmood (acquitted accused) were sent up for trial.

3. At the trial, the prosecution produced fifteen witnesses. Out of them P.W.8 (Muhammad Akram Draftsman), P.W.9 (Muhammad Islam H.C. No. 30), P.W.11 (Syed Mazhar Hussain who identified the signature of Dr. Akhtar Khan who had conducted the post-mortem examination), P.W.12 (Ch. Barkat Ali who has drafted the F.I.R.), P.W.13 (Zafarullah F.C.) and P.W.15 (Muhammad Aslam, Constable) are formal witnesses. The report of the Chemical Examiner Exh.P.J. was tendered in evidence. This report mentioned that the anal swabs are stained with semen and according to the post-mortem report the deceased died of Asphyxia. The motive for the commission of the offence as deposed by the prosecution witnesses is that Ilyas accused had previously committed sodomy with the deceased Muhammad Munir and a case was registered which was pending against the appellant in the Court of Khair Muhammad Tiwana, Magistrate 1st Class, Rawalpindi. Muhammad Munir (deceased) and his father Walayat Khan, the complainant had appeared as prosecution witnesses and the next date of hearing was fixed 5-11-1981. Due to this appellant Muhammad Ilyas used to extend threats to the deceased to teach him a lesson for the evidence, he had given against him in the Court.

4. The ocular evidence has been furnished through P.W.1 (Walayat Khan), P.W.3 (Mst. Bani Begum) and P.W.7 (Muhammad Abid, a minor and the son of Walayat Khan) while the circumstantial evidence has been attempted through P.W.2 (Sikandar Khan), P.W.4 (Muhammad Aslam), P.W.5 (Ghulam Hassan) and P.W.6 (Khizar Hayat). The accused persons were examined under section 342, Cr.P.C. and they denied the allegations levelled by the prosecution but did not produce any defence. However, their statements were recorded under section 340(2), Cr.P.C. wherein they pleaded innocence and said that they have been falsely implicated. The trial Court acquitted Sultan Mehmood while convicted and sentenced him as mentioned above.

5. The trial Court did not find the evidence of Walayat Khan as confidence inspiring on account of improvements made by him in hiss statement recorded at the trial. We also find the conduct of P.W.1 (Walayat Khan) is unnatural. Most of the facts which according to him were in his knowledge at the time of recording the report Exh.P.B. he had not mentioned before the police. The facts disclosed for the first time in Court were of paramount importance. The trial Court has pointed out the improvements made by P.W.3 (mother of deceased), she has been held to have done so to implicate the acquitted accused (Sultan Mehmood). Though according to the prosecution case the appellant had been extending threats to the deceased to the knowledge of the family yet no report was made to the police against the appellant.

6. The case of the prosecution at the trial was that the deceased was asked by Sultan Mehmood to accompany him to the under-construction house of Subedar Major Muhammad Hayat to see the mixture machine and there they saw the appellant Muhammad Ilyas. It does not stand to reason that Sultan Mehmood could have been taken into confidence by the appellant though Sultan Mehmood is so familiar and friendly with ''the complainant's family that he was called 'Lala' (elder brother) by the brother of the deceased (P.W.7) and the appellant was facing the trial already. P.W.7 (Abid) and P.W.3 (Mst. Bani Begum) do not say that the appellant was last seen in the company of the deceased.

7. It is well-established by now that the evidence of last seen is a weak type of evidence and is not by itself sufficient for conviction. The trial Court was conscious of the fact that it is not a case of direct evidence. The evidence of Sikandar Hayat P.W.2 and Khizar Hayat P.W.6 has been held to be not believable and the reasons given by the trial Court are cogent. Khizer Hayat has said in his deposition that he had seen two persons throwing the dead body, both of them were known to him, but still he did not disclose this fact to anyone just after the departure of the accused. These witnesses were examined by the police for the first time on 18-1-1982.

8. The enmity is a double-edged sword, it can equally prompt a person to implicate his adversary. Suspicion, whatsoever, high it may be cannot be substituted for proof. This proposition of law is so well-established that it does not require the citation of any authority. Medical evidence may prove the offence but not that the appellant has committed the offence. We are of the considered opinion that it is a case of no evidence and the appeal must be allowed and the conviction and sentences set aside on the ground that there is no evidence on record on which the trial Court could have reached a verdict of guilty against the appellant.

9. For the above reasons, we accept the appeal of Muhammad Ilyas and set aside the convictions recorded against him and acquit him of all the charges and he shall be released forthwith if not required in any other case. Consequently, Criminal Revision No. 2/1 of 1986 regarding enhancement of sentence of Muhammad Ilyas stands dismissed.

10. These are the reasons for our short order made at the conclusion of the hearing.

M. B. A./311/S Appeal accepted.

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