Appeal 2550 of the LHC (Rape and Murder of a minor)

The Criminal Appeal No. 612 of 2014 (Jabir Hussain versus The State, etc.) and Murder Reference No. 119 of 2014(The State versus Jabir Hussain) was presented in the Lahore High Court before Justice Sardar Ahmed Naeem. Appellant represented by Mr. Muhammad Irfan Malik, Advocate, The State by Mr. Zubair Ahmed Farooq, additional Prosecutor General along with Muhammad Afzal S.I. and Complainant (Shahid Hussain) by Mr. Kazim Ali Malik, Advocate.

The appellant Jabir Hussain was accused of case FIR No. 433 dated 23.12.2012 under Sections 364-A/377/302/201 PPC registered at Police Station City Wazirabad. He was tried by the Sessions Judge in Wazirabad and was convicted and sentenced under Section 302 (b), 364-A, 377 and 201 of PPC. Thus, appellant filed criminal appeal against his conviction. And Murder Reference is also before Court for confirmation of sentence.

The prosecution story, in brief, as unfolded in the complaint, on the basis of which FIR No.433/2012 was lodged by Muhammad Shahid complainant, was that on 23.12.2012 at 5.00 p.m., his son namely Ameer Hamza went to the shop of the Mohalla and did not return. He searched for his son but could not find him. The matter was reported to the police and a report was registered against an unknown person. On 25.12.2012, the complainant moved another application suspecting that Jabir Hussain, the appellant, who rented a shop located in the same Mohalla, (which had been closed for two days) was not himself traceable. It was alleged that he had abducted his son. Hence the present FIR was registered against him.

Muhammad Suleman, S.I. on entrustment of investigation of this case, on 26.12.2012, arrested the appellant who disclosed that he committed sodomy with the victim Ameer Hamza, who raised hue and cry whereupon the appellant strangulated him with hands. The appellant further disclosed that he put the child’s dead body into a deep freezer lying in his shop after tying his hands and legs with a cloth. The dead body was recovered in the presence of witnesses which was taken into possession by the police.

The investigation officer (IO) deputed Constable Nisar Ahmed to conduct the post-mortem examination.
On 29.12.2012, IO examined the accused for a potency test and presented the report. On 03.01.2013, he visited Gujranwala and recorded statement of Jabbar Ahmad, Sales Officer of the PEPSI freezer and took into possession an agreement deed, whereby which the accused was entrusted a freezer by the company.

The medical evidence was testified to by Dr. Zakir Ali Rana Medical Officer who conducted a post mortem examination on 26.12.2012 on the body of the deceased. In his opinion, the death occurred due to asphyxia as a result of throttling. Probable duration between injuries and death was approximately 3 to 5 minutes whereas, between death and postmortem examination was three days. He observed a ligature mark around the neck and found a nylon string on the neck of the deceased. He also observed the following injuries on his neck, head, thighs and anus. (i) Ligature mark on neck anterior side around the neck; (ii) Abrasion 3 x 4 cm under right thigh; (iii) Abrasion 3 x4 cm under left thigh; (iv) Lacerated wound 4 x 2 cm on the back and middle of head; (v) Perianal anal tear 1.5 x .2 cm at 6‟0 clock on upper border; (vi) Perianal tear 1.5 x 2 cm at 6‟0clock on the lower border.

In order to prove its case, the prosecution examined as many as sixteen witnesses. The appellant denied these facts in court and stated that he had been falsely implicated in this case. After evaluating the evidence and considering the merits of the case, the trial court held the appellant to be guilty for which he was convicted and sentenced. This was followed by the current appeal.

The counsel for the appellant contended that he was not nominated in the FIR rather: his name was mentioned in the application moved on 25.12.2012; that the case of prosecution entirely rested on circumstantial evidence and that there was no direct evidence to connect him with this occurrence; that the prosecution had badly failed to prove the charge levied against the appellant.

On the other hand, the Additional Prosecutor General assisted by the counsel for the complainant argued that the case against the appellant was proved beyond a shadow of reasonable doubt. It was submitted that the trial Court had thoroughly examined the entire evidence adduced by the prosecution and reached the conclusion that the guilt of the appellant was fully proved, therefore, such findings being based on careful appreciation of evidence called for no interference on mere discrepancies. Prosecution stated that the disclosure made by the appellant in police custody resulted in the recovery of the child’s dead body in a deep freezer from the shop run and rented by the appellant.

In this case there was strong circumstantial evidence which lead to the inference that Ameer Hamza was strangled to death after commission of sodomy by the appellant. The prosecution’s case was based on the recovery of the deep freezer, dead body, a piece of string, medical evidence and the statements of PWs having no reason for false implication of the appellant. The events which took place subsequent to the disappearance of the victim: the disappearance of the appellant after shutting down his own place of business from where the dead body of the victim was recovered, also aided in the accused’s conviction.

The Court concluded the totality of the circumstances, to prove the appellant alone to be the perpetrator of this heinous crime. It therefore upheld the conviction and sentences awarded to the appellant under section 302(b), and 377 PPC and the impugned judgment was modified only to the extent of setting aside the conviction under sections 201 (disappearance of evidence),364-A(kidnapping where murder is likely to occur) PPC.”

The appeal was therefore dismissed.