2025 Y L R 746
[Balochistan]
Before Muhammad Kamran Khan Mulakhail and Iqbal Ahmed Kasi, JJ
SONA KHAN and another ---Appellants
Versus
The STATE--- Respondent
Criminal Appeals Nos. 619 and 626 of 2022, decided on 16th October, 2024.
(a) Criminal trial ---
----Circumstantial evidence---Scope ---In cases of circumstantial evidence, every
circumstance should be linked with each other and it should form such a continuous
chain that its one end touchs the dead body and the other the neck of accused---If any link in the chain is missing then its benefit will go to the accused.
Ch. Barkat Ali v. Major Karam Elahi Zia and another 1992 SCMR 1047; Sarfraz
Khan v. The State 1996 SCMR 188 and Asadullah and another v. The State PLJ 1999 SC 1018 rel.
(b) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 34--- Qatl -i-amd, common intention---Appreciation of evidence---Extra -
judicial confession---No reliance---Accused were charged that they after kidnapping the son of complainant, committed his qatl -i-amd---Prosecution witness while appearing in
witness box stated that the appellant confessed his guilt before his brother that he had committed the murder of son of the complainant and thrown his dead body in a jungle, but it was noteworthy that as per prosecution case, the cause of death in the case could not be determined due to advance stage of decomposition of dead body---As per prosecution, the skeleton of dead body was examined by a doctor, but for reasons best known by the prosecution, his statement was not recorded during trial, which could show the cause of death of deceased ---In such circumstances, the extra- judicial confession had
to be taken with a pinch of sale ---Appeal against conviction was allowed, in
circumstances.
Sajjid Mumtaz and others v. Basharat and others 2006 SCMR 231 and Tahir Javid v.
The State 2009 SCMR 166 rel.
(c) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 34---Criminal Procedure Code (V of 1898), S. 164---Qatl -i-amd,
common intention ---Appreciation of evidence ---Judicial confession, recording of ---
Infirmities ---Accused were charged that they after kidnapping the son of complainant,
committed his qatl -i-amd---Record revealed that neither proper time was given to the
appellant, nor he was asked that he wasis not bound to confess his guilt ---Furthermore,
record showed that the statement of appellant was recorded on oath grossly violating the law; the same, therefore, rendered the confession inadmissible, which could not safely be relied upon, keeping in view the principle of safe administration of justice ---Appeal
against conviction was allowed, in circumstances.
(d) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 34--- Qatl-i-amd, common intention ---Appreciation of evidence ---Last seen
evidence--- No reliance---Conduct of witnesses un- natural ---Accused were charged that
they after kidnapping the son of complainant, committed his qatl -i-amd---Record showed
that two witnesses were near relatives of the complainant, who stated in their statements before the trial Court that on 23.10.2019, at about 05:00 p.m. when they came to bazar,
they saw the deceased with appellant/accused persons with the motorcycle of deceased and
they were going towards a plaza ---Said witnesses stated such fact after almost 24 days to
the complainant on 17.11.2019 and thereafter their statements were recorded by the police -
--Both the prosecution witnesses admitted in cross -examination that they were residents of
same vicinity and close relatives to complainant ---Conduct of said two witnesses was
highly improbable as they did not inform the complainant in time ---Even otherwise, last
seen evidence was a weak type of evidence, which was procured at any time during the investigation, when direct evidence was not available with the prosecution--- Appeal
against conviction was allowed in circumstances.
Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103 rel.
(e) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 34--- Qatl -i-amd, common intention---Appreciation of evidence---Cause
of death not known--- Accused were charged that they after kidnapping the son of
complainant committed his qatl -i-amd---Prosecution witness, on 17.11.2019, informed
the complainant that brother of appellant/accused informed him via cell phone that after
committing murder of deceased, they threw the dead body in a jungle ---On such
information, complainant along with said witness and Levies Officials, proceeded as that
place and identified the body, as that of deceased, with the help of shoes, clothes and hair---As per record, it was a complete skeleton with no flesh, so it was not possible to
ascertain the cause of death ---After about less than one month of the missing of
deceased, when a skeleton was found, it was believed by the witnesses and the
complainant to be that of deceased, but in absence of any evidence with regard to the
attack of animals on the dead body of deceased, it was not believable that dead body of a
human being became completely decomposed within a period of less than a month and converted into a complete skeleton---When cause of death could not be known on
postmortem for the reason that only skeleton was produced before the doctor for
conducting postmortem, the prosecution ought to have referred the dead body to an
anatomy expert, which was not done in the present case, and this was a serious lacuna in the prosecution case--- In absence of any ligature mark on the body, it was difficult to
hold that the death was homicidal and not natural ---Appeal against conviction was
allowed, in circumstances.
Shobhau alias Shabhau, v. State of M.P 1998 PCr.LJ 3934 rel.
(f) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 34 ---Qatl -i-amd, common intention--- Appreciation of evidence ---
Recovery of different articles ---Accused were charged that they after kidnapping the son of
complainant, committed his qatl -i-amd---Record showed that, on 17.11.2019, the alleged
dead body was recovered from the jungle on the pointation of appellants ---On 02.12.2019,
one spade was recovered from the jungle area ---On 03.12.2019, again on the disclosure of
appellant, the SIM of deceased was recovered from the said area--- On 04.12.2019, cell
phone of deceased was allegedly recovered on the pointation of appellant ---Such recoveries
did not appeal to a prudent mind, as the question was as to why the said recoveries were not made is one day, which showed that the prosecution just to improve the case, day to day, recovered the above articles ---Furthermore, all the witnesses, regarding recovery of
handkerchief from the house of appellant, with which the deceased was strangulated, were totally silent--- Beside that, at the time of the said recoveries, no one from the general
public was associated as a mushir, which was clear -cut violation of S.103, Cr.P.C., and
thus, such recoveries became highly doubtful ---Appeal against conviction was allowed, in
circumstances.
Muhammad Nawaz Khan Tareen for Appellant (in Criminal Appeal No. 619 of 2022).
Muhammad Younas Mengal, Additional Prosecutor General for the State (in Criminal
Appeal No. 619 of 2022).
Naseebullah Achakzai and Lawanging Khan Kasi for Appellant (in Criminal Appeal
No. 626 of 2022).
Muhammad Younas Mengal, Additional Prosecutor General for the State (in Criminal
Appeal No. 626 of 2022).
Date of hearing: 27th September, 2023.
JUDGMENT
IQBAL AHMED KASI, J .---The instant Criminal Appeals have been preferred by
appellants Sona Khan son of Imam Bakhsh and Bashir Ahmed son of Ghous Bakhsh,
challenging the validity of the judgment dated 22.11.2022 ("the impugned judgment") passed by the learned Additional Sessions Judge, Dukki ("the trial Court"), whereby, the appellants were convicted under Sections 302(b), 34 P.P.C., and sentenced imprisonment for life as ta'zir and also sentenced to suffer rigorous imprisonment for 25 (twenty five) years with the
benefit of Section 382- B, Cr.P.C.
2. Since Criminal Appeals Nos.619 and 626 of 2022 are arising out of the same
judgment of the trial Court, therefore, we intendent to dispose of the same through this
common judgment.
3. Brief facts arising out of the instant appeal are that complainant Qehar Khan son of
Nabi Dad, lodged FIR No.104 of 2019, dated 17.11.2019, with Police Station, Duki, under Sections 302, 365, 342, 344, 201.34 P.P.C. alleging therein that an 23.10.2019, his son, namely, Abdul Aziz came to Duki City, on his motorcycle for personal work and not returned to home, thus, he reported the matter to Police Station Duki on 25.10.2019. The complainant further alleged that he started search of his son by his own and after some days Muhammad Saleh and Bara Khan told him that on 23.10.2019 at about 05:00 p.m. they saw
his son with Sona Khan, Bashir Ahmed (accused faced trial) and Saleem Khan (absconding accused), while cell phone of his son having numbers 0335- 8234406 and 0316- 8522217 was
going off. The brother of accused Sona Khan, namely, Khan Muhammad informed Muhammad Rafique that accused persons had murdered his son and thrown his dead body in jungle of Salezai area Duki. On such information, the Police searched and recovered skull, bones, hair, a pair of shoes and pieces of clothes, which were identified by the complainant, as Abdul Aziz (his son). The accused persons after kidnapping son of complainant, committed his Qatl- e-Amad and on such allegations, FIR was lodged.
4. After registration of FIR, the appellants/accused were arrested, investigated and sent
to face trial before the trial Court.
5. A formal charge was framed and read over to the appellants/accused, to which they
pleaded not guilty and claimed trial.
6. The prosecution in order to substantiate charge against the appellants/accused
produced and examined the following witnesses before the trial Court:
PW-1 Qehar Khan. He is the complainant of the case, who produced his written report
as Ex.P/1 -A.
PW-2 Bara Khan, is the eye- witness of the case and identified the acused persons
present in the Court.
PW3 Muhammad Saleh, is also the eye -witness of the case and ceptified the accused
persons present in the Court.
PW-4 Jan Baig, is recovery witness. He produced the recovery memo. of recovered
spade as Ex.P/4 -A, mobile SIM of deceased Ex.P/4 -B, Mobile of deceased as Ex.P/4 -
C, handkerchief as Ex.P/4- D. He also produced parcel No.5 of recovered spade as
Art.P/1, spade as Art.P/2, specimen of seal parcel No.5 as Art.P/3, parcel No.6 of recovered mobile SIM of deceased as Art.P/4, mobile SIM as Art.P/5, specimen of seal parcel No.6 as Art.P/6, parcel No.7 of recovered Q -Mobile of deceased as Art/P7.
Q-Mobile as Art.P/8, specimen of seal as Art.P/9, seal parcel No.8 of handkerchief as
Art.P/10,k handkerchief Art.P/11, specimen of seal as Art. P/12.
PW-5 Riaz Ahmed, Head Constable, is the recovery witness. He produced the
recovery memo. of recovered skull and pieces of body as Ex.P/5- A, hairs as Ex.P/5- B,
recovery memo. of recovered pieces of clothes as Ex.P/5 -C, recovery memo. of
recovered pair of shoes as Ex.P/5- D, parcel No.1 of recovered pieces of body and
bones as Art.P/3 to Art.P/13, pieces of body and bones as Art.P/14, specimen of seal
as Art. P/15, parcel No.2 of recovered hairs as Art.P/16, hairs as Art.P/17, specimen of seal as Art.P/18, seal parcel No.4 of recovered pair of shoes as Art.P/19, pair of
shoes as Art.P/20, specimen of seal as Art.P/21.
PW-6 Shehzad Ahmed, Ex -Judicial Magistrate, Duki, is the officer, who recovered
the statement of accused Sona Khan, under Section 164, Cr.P.C. He produced the
forwarding letter for submission of sealed envelop as Ex.P/6- A, sealed envelop as
Ex.P/6- B, statement of accused as Ex.P/6 -C, his written certificate as Ex.P/6 -D.
PW-7 Shams -ud-Din, Constable, is witness of recovery memo. of motorcycle and
produced the same as Ex.P/7- A.
PW-8 Muhammad Raffique.
PW-9 Ghulam Siddique, Constable, is recovery witness of empty box of Q -Mobile
and jacket of Zong SIM of deceased and produced the same as Ex.P/9- A. two
photocopies of documents of motorcycle of deceased as Ex.P/9- B and one box of Q -
Mobile as Art.13/1 and Jacket of Zong SIM as Art.P/2.
PW-10 Jamal Khan, Head Constable, is recovery witness and produced recovery
memo. of two photocopies of documents of recovered motorcycle of deceased as
Ex.P/1 -A and disclosure memo. of accused Basir Ahmed as Ex.P/10 -B.
PW-11 Sajjad Afzal, ASI, is the first Investigating Officer, who produced copy of
FIR, site sketch, site sketch of place of recovery of human skull, clothes and bones,
site sketch prepared by Jan Gul Patwari, in which pointed the place of dead body of
deceased and incomplete challan as Ex.P/11 -A to Ex.P/11 -E.
PW-12 Muhammad Shah. is the second Investigation Officer of the case,who
produced supplementary incomplete challan No.106112019 and another supplementary incomplete chalian No_106- C as Ex.P/12 -A and Ex.P/12- B.
7. On closure of prosecution side, appellants/accused were examined under Section 342,
Cr.P.C., wherein, they again denied the prosecution allegations levelled against them and professed their innocence. However, the appellants/accused neither got recorded their statements on oath under Section 340(2), Cr.P.C. nor produced any witness in their defence.
8. At the close of trial, the learned trial Court, after hearing arguments from both sides,
convicted and sentenced the appellants/accused as mentioned in para supra, whereas, the case was kept in dormant till arrest of the absconding accused.
9. Learned counsel for the appellants contended that the appellants are innocent and
have wrongly been implicated in the instant case; that there are material contradictions in the prosecution case; that the FIR was lodged on the basis of hearsay evidence, thus, has no evidentiary value; that there is no eye -witness of the alleged incident, which obviously is
unseen; that no direct or indirect evidence is available on record against the appellants/accused to connect them with the commission of the alleged offence; that nothing has been recovered from the personal possession of the appellants; that there are major contradictions amongst the testimony of prosecution witnesses; that the impugned judgment is result of misreading and non- reading of evidence, warranting interference by this Court.
10. On the other hand learned APG while opposing the contention of the learned counsel
for the appellants contended that the appellants/accused were arrested on the basis of concrete evidence produced by the prosecution witnesses; that circumstantial evidence also involved the appellant with the commission of the alleged offence; that the trial Court passed a well reasoned and speaking judgment, thus, there is no room available to interfere in it.
11. We have heard the learned counsel for the parties and have perused the available
record. The detail of the prosecution case as set forth in the complaint (Ex.P/1 -A) on the
basis of which formal FIR (Ex.P/11- A) was chalked out, has already been given in para supra
of this judgment, therefore, there is no need to repeat the same.
12. Since there is no direct evidence and prosecution case hinges on the circumstantial
evidence, therefore, utmost care and caution is required for reaching at a just decision of the
case. It is settled law that in such like cases every circumstance should be linked with each other and it should form such a continuous chain that its one end touches the dead body and the other to the neck of accused. But if any link in the chain is missing then its benefit must
go to the accused. In this regard, guideline has been sought from the judgments of the Apex
Court of the Country reported as Ch. Barkat Ali v. Major Karam Elahi Zia and another 1992
SCMR 1047, Sarfraz Khan v. The State, 1996 SCMR 188 and Asadullah and another v. The State PLJ 1999 SC 1018. In case of "Ch. Barkat Ali" supra, the august Supreme Court of Pakistan observed as under:
"---Law relating to circumstantial evidence that proved circumstances must be
incompatible with any reasonable hypothesis of the innocence of the accused. See `Siraj v. The Crown' (PLD 1956 FC 123). In a case of circumstantial evidence, the rule is that no link in the chain should be broken and that the circumstances should be such as cannot be explained away on any hypothesis other than the guilt of the accused."
In the case of "Sarfaraz Khan" (supra), the august Supreme Court of Pakistan, at page 192, held as under: -
7---It is well settled that circumstantial evidence should be so inter -connected that it
forms such a continuous chain that its one end touches the dead body and other neck of the accused thereby excluding all the hypothesis of his innocence."
Further reliance in this context is placed on the case of Altaf Hussain v. Fakhar Hussain and another' (2008 SCMR 1103) wherein, at page 1105 it was held by the
Hon 'ble Supreme Court as under -
"7---Needless to emphasis that all the pieces of evidence should be so linked that it
should give the picture of a complete chain, one corner of which should touch the neck of the deceased and other corner to the neck of the accused. Failure of one link will destroy the entire chain."
Keeping in view the parameters, laid down in the above mentioned judgments, we proceed to decide this case."
13. According to the evidence of prosecution witness Muhammad Rafique (PW -8) while
appearing in witness box stated that the appellant/accused Sona Khan confessed his guilt before his brother Muhammad Khan that he had committed the murder of deceased Abdul Aziz (son of the complainant Gohar Khan (PW -1)) and thrown his dead body in a Jungle of
Salezai area Duki, but it is noteworthy that as per prosecution case, the cause of death in this case could not be determined due to advance stage of decomposition of dead body. It is further noteworthy that as per prosecution, the skeleton of dead body was examined by a Doctor, but for the reasons best known by the prosecution, his statement was not recorded during trial, which could show the cause of death of deceased.
14. Insofar as the extra judicial confiscation of appellant Sona Khan before Shehzad
Ahmed (PW -6) is concerned, the evidentiary value of the extra judicial confession came up
for consideration before the Hon'ble Supreme Court of Pakistan in the case reported as "Saijid Mumtaz and others v. Basharat and others", 2006 SCMR 231, wherein, the Hon'ble Apex Court of Pakistan has been pleased to lay emphasis as under:
"17. This Court and its predecessor Courts (Federal Court) have elaborately laid down the law regarding extra judicial -confession starting from Ahmed v. The Crown (PLD
1961 FC 103- 107) upto the latest. Extra -judicial confession has always been taken
with a pinch of sale. In Ahmed v. The Crown, it was observed that in this country (as a whole) extra- judicial confession must be received with utmost caution. Further, it
was observed from time to time, that before acting upon a retracted extra- judicial
confession, the Court must inquire into all material points and surrounding circumstances to `satisfy' itself fully that the confession cannot but the true'. As, an extra- judicial- confession is not a direct evidence, it must be corroborated in material
particulars before being made the basis of conviction.
18. It has been further held that the status of the person before whom the extra -
judicial confession is made must be kept in view, that joint confession cannot be used
against either of them and that it is always a weak type of evidence which can easily be procured whenever direct evidence is not available. Exercise of utmost care and caution has always been rule of prescribed by this Court.
19. It is but a natural curiosity to ask as to why a person of sane mind should at all confess. No doubt the phenomenon of confession is not altogether unknown but being a human conduct, it had to be visualized, appreciated and consequented upon purely in the background of a human conduct.
20. Why a person guilty of offence entailing capital punishment should at all confess. There could be a few motivating factors like: (i) to boast off (ii) to ventilate the suffocating conscience and (iii) to seek help when actually trapped by investigation. Boasting off is very rare in such- like heinous offences where fear dominates and is
always done before an extreme confident as well as the one who shares close secrets. To make confession in order to give vent to one's pressure on mind and conscience is another aspect of the same psyche. One gives vent to one's feelings and one removes catharses only before a strong and close confident. In the instant case the position of
the witness before whom extra -judicial confession is made is such that they are
neither the close confident of the accused nor in any manner said to be sharing any
habit or association with the accused. Both the possibilities of boasting and ventilating in the circumstances are excluded from consideration.
Another important and natural purpose of making extra -judicial confession is to
trapped and, secondly, from one who is authoritative, socially or officially.
As observed by the Federal Court, we would reiterate especially referring to his part
of the country, that extra -judicial- confession have almost become a norm when the
prosecution cannot otherwise succeed. Rather, it may be observed with concern as well as with regret that when the Investigating Officer fails to properly investigate the case, he resorts to padding and concoctions like extra -judicial confession. Such
confessions by now have become the sings of incompetent investigation. A judicial mind, before relying upon such weak type of evidence, capable, of being effortlessly procured must ask a few questions like whey the accused should at all confess, what is the time lag between the occurrence and the confession, whether the accused had been fully trapped during investigation before making the confession, what is the nature and gravity of the offence involved, what is the relationship or friendship of the witnesses with the maker of confession and what, above all, is the position or authority held by the witness"
The above view has been reiterated in the case reported as "Tahir Javid v. The State",
2009 SCMR 166.
15. In the case in hand, the statement recorded under Section 164, Cr.P.C. of
appellant/accused Sona Khan is totally against the emphases laid down by the Hon'ble Supreme Court of Pakistan. The record reveals that neither a proper time was given to the appellant, nor he was asked that he is not bound to confess his guilt. Furthermore, record shows that the statement of appellant was recorded on oath grossly violating the law, the same, therefore, rendered a confession inadmissible, which cannot safely be relied upon, keeping in view the principle of safe administration of justice.
16. Witnesses Bara Khan (PW -2) and Muhammad Saleh (PW -3) are near relatives to
complainant, who stated in their statements before the trial Court that on 23.10.2019, at about 05:00 p.m. when they came to Duki bazar, saw the deceased Abdul Aziz with appellant/ accused Sona Khan, Bashir Ahmed and one Saleem, at Bacha Khan Chowk with the motorcycle of deceased bearing Registration No.1686- MP, and they were going towards
plaza. The witnesses told this fact after almost 24 days to complainant on 17.11.2019 and thereafter their statements were recorded by the Police. Both the prosecution witnesses admitted in cross -examination that they are residents of same vicinity and close relatives to
complainant. Conduct of these two witnesses is highly improbable which did not inform the complainant in time. Even otherwise, last seen evidence is a weak type of evidence, which is procured at any time during the investigation, when direct evidence is not available to the prosecution. Reliance in this respect is placed to the case of "Altaf Hussain v. Fakhar Hussain and another", 2008 SCMR 1103.
17. The other evidence in order to prove that the body found in decomposed position in
the Jungle of Salezai, was of deceased, Muhammad Rafique (PW- 8) on 17.11.2019 informed
the complainant that brother of appellant/accused Sona Khan, namely, Muhammad Khan,
informed him via cell phone that after committing murder of Abdul Aziz, they thrown the dead body in Jungle Salezai. On such information, complainant along with Muhammad
Rafique (PW -8) and Levies officials, proceeded to that place and identified the body, to that
of Abdul Aziz, with the help of wearing shoes, clothes and hair. The body was brought for
examination. As per record, it was a complete skeleton with no flash, so it was not possible to ascertain the cause of death. On a question as to how much period is required to a human body to be completely decomposed, we have looked into medical jurisprudence and other material available on the point and are of the view that, following death, the human body progress through five basic stages of decomposition:
(i) Fresh:
The fresh stage beings immediately after death when the circulatory system (heart beating/pumping blood) steps functioning. It is during this stage that the blood will settle with gravity creating a condition known as lividity. After several hours the
muscles will also begin to stiffen in a process known as rigor mortis. The body
temperature will also begin to acclimate to the environment. Cells will begin to break
down and release enlymes during a process called autolysis which can cause blisters on the skin_ The anaerobic organisms in the digestive tract will begin to multiply, producing acids and gases (the source of the bad odors). This process is often referred
to as putrefaction.
(ii) Bloat:
As the name implies, the gases being produced during putrefaction begin to build and
will give the body a distended appearance. Gases and fluid will eventually escape through the natural orifices o as the pressure builds. As the gastrointestinal bacteria multiply and can lead to conditions like marbling which is a discoloration pattern seen
in the skin.
(iii) Active Decay:
During this phase the body begins to lose much of it's fluids and mass (tissue) through
purge and insect and/or vertebrate scavenging (coyote fox, lion, etc.). During this phase you may see very large maggot masses and notice a considerable increase in foul odours.
(iv) Advance Decay:
This phase is the end of the active decay process. Temperatures can either speedup (heat) or slow down (cold) how quickly a body reaches this space. The body has very little body mass and soil staining of the surrounding soils is still evident. This soil staining (from body fluids) may actually kill some of the surrounding vegetation temporarily. Maggots will migrate away from the body to pupate and flies will cease laying eggs.
(v) Dry/Skeletal:
This phase is the last measurable stage of decomposition. The timing of this stage varies widely by environment. It might take months. If there is any skin left it will be leather -like and very tough. Mostly the body is reduced to bones and connective
tissue. There is no biomass available for diverse insect colonization. Some beetles and adventitious insects may colonize a body for shelter or feeding on other insects and connective tissue. Over time the bones may "bleach" (turn white) with exposure to sunlight and eventually will begin to exhibit cracks after several years. These weathering cracks are distinctive and would not be confused with a fresh break (injury) unless by an inexperienced analyst.
When Parikh's deals on this subject, as provided in Parikh's Textbook of Medical
Jurisprudence and Toxicology (Fifty Edition), he draws the following conclusion: -
(a) In 5 to 12 days, colliquative (colliquative -liquification) putrefaction begins. The
various tissues become soft and loose and are converted into a semi fluid black mass.
They ultimately liquefy and breakdown. Only the more resistant viscera which
putrefy, in 2- 3 weeks are distinguishable.
(b) The body is thus skeletonized in 1 to 3 months.
(c) Further provides that thus the importance of autopsy even in states of advanced decomposition is plain, for organs like kidneys, uterus or prostate and blood vessels may still remain and provide vital information. Vascular walls resist decomposition and evidence of coronary insufficiency can often be discovered.
18. After having gone through the above opinion of experts and particularly keeping in
view the fact that after about less than one month of the missing of Abdul Aziz deceased, when a skeleton was found, it was believed by the PWs and the complainant to that of Abdul Aziz deceased, but in absence of any evidence with regard to the attack of animals on the dead body of deceased, it is not believed that dead body of human begin became completely decomposed within a period of less than a month and converted into a complete skeleton.
19. A Division Bench of Madhya Pardesh High Court, in case of "Shobhau alias Shubhau,
Appellant v. State of M.P, Respondent" 1998 Crl.LJ 3934 in a case of similar nature has found that when cause of death could not be known on postmortem for the reason that only skeleton was produced before the Doctor for conduct of postmortem, the prosecution ought
to have referred the dead body to Anatomy Expert, which was not done in the present case,
and was considered as serious lacuna in the prosection case and in absence of any ligature
mark on the body, it was found difficult to hold that the death was homicidal and not natura.
20. Another important aspect of the case is that on 17.11.2019, the alleged dead body was
recovered from the Jungle of Salezai, on the pointation of appellants. On 02.12.2019, one
spade was recovered from the Salezai area. On 03.12.2019, again on the disclosure of
appellant, the SIM of deceased was recovered from the said area. On 04.12.2019, Q -Mobile
phone of deceased was recovered on the pointation of appellant, which does not appeal to a prudent mind, as to why the said recoveries were not made on one day, which shows that the prosecution just to improve the case, day to day, recovered the above articles. Furthermore, all the witnesses, regarding recovery of handkerchief from the house of appellant Sona Khan, with which the deceased was strangulated, are totally silent. Beside this, at the time of the above recovery, no one from the general public was associated as a mushir, which is clear -
cut violation of Section 103, Cr.P.C. and thus, such recoveries became highly doubtful.
In view of what has been discussed hereinaboye, we are inclined to allow the instant
appeals, set aside the impugned judgment dated 22.11.2022, passed by the Additional Sessions Judge, Duki and acquit the appellants Sona Khan son of Imam Bakhsh and Bashir Ahmed son of Ghous Bakhsh, of the charge, in case FIR No.104 of 2019, dated 17.11.2019, registered with Police Station Duki. The appellants are in custody, they shall be set at liberty, if not required in any other case.
JK/29/Bal. Appeal allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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