1. The learned Additional Sessions Judge Rawalpindi, vide judgment dated 15.09.2010 convicted the appellant Raheem Ullah u/s 302(b) PPC and sentenced him to death penalty with a direction to pay compensation of Rs.2,00,000/- under section 544-A Cr.P.C. to the legal heirs of the deceased or in default thereof to further undergo six months R.I. The appellant has filed Crl. Appeal No.173-J of 2010 against his conviction and sentence whereas the learned trial Court has sent a Reference (M.R.No.143 of 2010) u/s 374 Cr.P.C. for the confirmation of death sentence of the appellant or otherwise. Since common question of law and facts involved, therefore, both matters are being disposed of by means of this common judgment.
2. The prosecution case as unfolded in the FIR (Ex.PD/1), registered on the statement (Ex.PD) of complainant, Fazal-e-Rabi, (PW.11), is that he is a rickshaw driver by profession and on 17.03.2010, he returned home at about 04:00 pm and came to know that his son Suleman Khan aged about four years, was missing since 03:00 pm. He along with others started searching and also made announcement in loudspeaker of Mosque. Meanwhile, Hassan Khan (PW.12) (Mamoon of Suleman) and Mab Shah, told him that they had seen Suleman Khan in the company of Rahim Ullah while giving candies to him from a shop and going into the Baithak, upon which the complainant along with Hassan Khan, Mab Shah and others went to the Baithak of Rahim Ullah at about 12:10 night. The Baithak was locked from outside and the complainant along with Hassan Khan and Mab peeped from the window and saw that his son Suleman was lying in the corner of the Baithak in injured condition and his trouser was put off.
3. After thorough investigation report u/s 173 Cr.P.C. was submitted in the Court. The prosecution in order to prove its case examined as many as sixteen witnesses. The ocular account in this case has been furnished by Zahir Khan (PW.10), Fazal-e-Rabi (PW.11) and Hassan Khan (PW.12). Mazhar Hussain S.I./I.O appeared as PW.16 and deposed about the various steps taken by him during the investigation of this case. The autopsy on the dead body of Suleman Khan (deceased) was conducted by Dr. Ghulam Abbas C.M.O. (PW.15) who observed following injuries on the person of the deceased:
1. Two bruises marks each measuring 3 x 2 cm approximately on lateral side of neck, resembling that of throat.
2. Multiple bruises on interior surface of thighs.
3. A bruise 3 x 1 cm below left eye.
4. A bruise 3 x 3 cm on forehead between eyes.
On genital examination
On pananal area multiple small bruise were present. Swabs were taken
On anal area there was evidence of bleeding while anal was not furnal shape.
On rectal examination there was a tear present at 3’O clock position.
In the opinion of the doctor the deceased died due to asphyxia caused by throttling leading to cardio pulmonary rest and death and further opined that deceased under went through sexual assault before death. He during general examination observed perianal area, observed multiple small bruises. Obtained swabs and found evidence of bleeding on anal area. A tear at 3‟o clock position was also noticed on rectal examination. Rest of the prosecution witnesses are almost formal in nature.
4. After closure of the prosecution case the statement of the appellant was recorded u/s 342 Cr.P.C. In response to a question that “why this case against you and why the witnesses deposed against you”, the appellant replied in following terms:
“I am innocent. I have falsely been involved in this case due to suspicion. All the PWs are related inter se and deposed against me as being relatives of the complainant.”
5. The appellant neither opted to give evidence on Oath as provided u/s 340(2) of the Code of Criminal Procedure, 1898, in disproof of the allegations leveled against him nor did he produce any defence evidence.
6. The learned trial court vide its judgment dated 15-09-2010 found the appellant guilty, convicted and sentenced him as mentioned and detailed above.
7. Learned counsel for the appellant contended that it was a case of indirect evidence as no one is the eye witness of the occurrence; that witnesses produced by the prosecution were interested one, therefore, testimony could not be accepted without corroboration from unimpeachable and independent piece of evidence; that the prosecution witnesses were not reliable and confidence inspiring as they made improvements in their statement before the court over their previous statements; that the learned trial court has relied upon the last seen evidence, which is weakest type of evidence and same is the position with the evidence of Waj Takkar; that as there was no eye witness of the alleged occurrence and the appellant was roped in the case with malafide intention and ulterior motives; that there was no occasion with prosecution witnesses to be present at the place of occurrence, which creates doubt and benefit of doubt always tilt in the favour of accused; that medical history of the deceased do not fully support the prosecution version and finally prayed for acceptance of the appeal.
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