' ZAFAR PASHA CHAUDHARY, J.--- This judgment will dispose of Criminal Appeal No,128/L of 2003 and Criminal Appeal No,141/L of 2003 alongwith Murder Reference No,16/L of 2003 as all the three arise out of the common judgment, dated 8-4-2003 passed by Syed Najamul Hassan, Additional Sessions Judge, Sialkot in case F.I.R. No,141, dated 19-6-2000 registered with Police Station Sabz Peer, under sections 10 and 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance), read with sections 302/201, P.P.C. On conclusion of the trial, the learned Additional Sessions Judge, vide his impugned judgment convicted Muhammad Younas and Shamas Din, appellants under section 302(b), P.P.C. Read with section 34, P.P.C. For committing murder of Mst. Sumera Bibi. Charge under section 11 of the Ordinance could not be proved against either of the appellants, therefore, they were acquitted of the same.
' The learned trial Judge imposed death penalty on Muhammad Younas appellant, as according to him he did not deserve any leniency. He was also ordered to pay Rs,50,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased, in default whereof to undergo six months'
R.I. Shamas Din, appellant being nephew of Muhammad Younas, was awarded lesser penalty of imprisonment for life being under the influence of his maternal-uncle. He was ordered to pay Rs,10,000 as compensation to the legal heirs of the deceased. Benefit of section 382-B, Cr.P.C. Was extended to the appellant.
2. The prosecution case as revealed from application moved by Nazir Ahmad before .The S.H.O., which was subsequently transformed into F.I.R. Is that, his daughter Mst. Sumera Kausar deceased on 18-6-2000 at about 8-00 a.m. Left her house to dispose of garbage in the field near his tube- well. She found that five persons, i,e, Muhammad Younas, appellant alongwith one Muhammad Ashraf, Shamas Din, appellant accompanied by two other unknown persons were present over there. They forcibly made Mst. Sumera to ride the motorcycle and abducted her for immoral purpose. On hue and cry raised by the complainant Abdul Aziz and Hameedullah were attracted towards the place of occurrence. They also witnessed the occurrence. On the statement of Nazir Ahmad, F.I.R. Exh.P.D./1 was registered on 19-6-2000 at 10-10 a.m.
3. The investigation was carried out by Muhammad Hussain S.-I., P.W.12 who had received the application Exh.P.D. On behalf of Mst. Sumera. The Investigating Officer after recording statements of witnesses under section 161, Cr.P.C. Proceeded to the place of occurrence and prepared site plan.
He received information that the abductee had been murdered within the area of Police Station Saddar Sialkot. He reached the place of murder of Mst. Sumera and found that a dead body was lying within the area of village Rasul Pur Bhallian. After preparing inquest report, the dead body was dispatched for post-mortem examination.
4. On 23-6-2000 Muhammad Younas and Shamas Din were arrested by him. He recovered matcbox, a packet of cigarettes and Motorcycle No,GAB-7539 used for abduction of Mst. Sumera deceased. The Investigating Officer after completing the necessary formalities and collecting relevant material and also recording statements of witnesses found that both the appellants Muhammad Younas and Shamas Din were involved in the commission of the offence, therefore, they were challaned to the Court.
5. The learned trial Judge on receipt of the report under section 173, Cr.P.C./Challan, charged Muhammad Younas firstly under section 10 of the Ordinance for committing Zina with Mst. Sumera.
Both the appellants were charged under section 11 of the Ordinance for abducting Mst. Sumera on 18-6-2000. Both the appellants were charged under section 302, P.P.C. For committing murder of Mst. Sumera on the same day, i,e, 18-6-2000 in the evening when darkness had prevailed, by strangulating her by roping her Dopatta around her neck. Both the appellants were charged under sections 201 P.P.C. For destroying and screening the evidence by putting dead body of Mst. Sumera on fire.
6. As evident from the charge, Muhammad Younas was charged under four heads whereas Shamas Din was charged under three heads, as stated supra.
7. Both the appellants pleaded not guilty and claimed trial. Accordingly they were put on trial by the learned Additional Sessions Judge. The prosecution in support of its case examined 12 witnesses. P.Ws.1 and 2 are formal witnesses from police. Doctor Shakeela Faheem P.W.3 conducted the post-mortem examination of Mst. Sumera Bibi who was aged about 16 years. The doctor on examination of the dead body observed as follows:-- "No marks of ligature visible because overlying skin was burnt. A dead body of young female examined by me. There blisters present on whole of the body. Tongue and ?Yes protruded. Face swollen. The whole of skin in front of chest and neck was burnt and wound was deep and it had also burnt the underlying tissue to some extent. The skin in front of shoulder was also burnt. No external marks of violence were visible due to decomposition. Rigor mortis absent. Underline clothes were burnt and only the pieces of clothes were attached to me burnt areas. Scalp and vertebra healthy. Membrane and brain healthy. Spinal cord not opened thoracic wall, ribs and cartrilages were healthy. Pleura healthy. Larynx and trachea healthy. Right lung healthy. Left lung healthy. Pericardium and heart healthy. Skin of the abdomen burnt involving the underlying tissues.
There were multiple scalds present all over the body. Mouth and pharynx were healthy. Spleen, liver, kidney and intestine healthy. Organs of generation mentioned. On opening the uterus about seven months old fetus (female present in the urine cavity). On P.V. Examination. Head of fetus coming out of the vagina. On examination of muscle bone joint, no disease or deformity seen. No fracture.
No dislocation."
' Specimen from the body and the clothes were sent for chemical examination to Chemical Examiner and Bacteriologist. The post-mortem report alongwith the specimen of hyoid bone were dispatched to the Bacteriologist in order to obtain his expert opinion. As per report, dated 18-7- 2000 Exh.P.N. On behalf of the Chemical Examiner the earth and burnt pieces of clothes (ashes) were found to be stained with blood. The pieces of burnt clothes were further sent to Serologist to determine the origin of blood. The Bacteriologist vide his report Exh.P.D. Reported as under:-- "Histological examination from hyoid bone reveals bony fragments and multiple small sized haemorrhages with leuikocytes. The adjacent soft tissue is also autolysed. These features are suggestive of Ante - mortem injury to hyoid bone."
' The Serologist vide his report Exh.P.Q. Observed as under:- "The above articles are stained with human blood, as per record."
' P.W.4 Dr. Ghulam Mustafa found Muhammad Younas potent to perform sexual intercourse.
' P.W.5 is a formal witness. P.W.6 Qadeer Hussain, brother of deceased Mst. Sumera identified her dead body before the post-mortem examination.
' P.W.7 is Nazir Ahmad son of Nawab Din (not complainant). According to him, Shamas, appellant came to him and told that on 17-6-2000, Younas appellant called him that Mst. Sumera Kausar was ill and under that pretext she was called to get her medical treatment. Accordingly she was taken out of her house and brought to the tube-well. She was made to board the motorcycle and they proceeded to village Harpal where Younas was already present. All the three persons boarded the motorcycle and went away. According to Shams he had left Younas and deceased Mst. Sumera Kausar over there. Shamas subsequently, came to know that Mst. Sumera had been murdered.
Shamas pleaded his innocence and after imparting the above information he prayed that he may be got pardoned. It would be pertinent to point out here that at the time of recording of statement of Shamas under section 342, Cr.P.C. The age of Shamas had been recorded as 18 years. It means that at the time of occurrence, i,e, 18-6-2000 he would be just 15 years old.
' P.W.8 Muhammad Abbas is a Patwari and he prepared the scaled site plan Exh.P.C. And Exh.P.C./1.
' Nazir Ahmad son of Fateh Din (complainant) is father of deceased Mst. Sumera Bibi. He reiterated the statement already made by him in his application Exh.P.D., which was subsequently transformed into F.I.R. Exh.P.D./1. According to him this occurrence had been seen by Hameedullah and Abdul Aziz. Out of them Hameedullah'' was examined as P.W.1. The complainant supplied the motive stating that his daughter Mst. Razia Bibi, elder sister of Mst. Sumera Bibi deceased, was wife of Muhammad Younas appellant. For about 10/12 years she could not give birth to any child.
Younas appellant developed relations with Mst. Sumera Bibi and asked her to marry him. Mst.
Sumera did not accede to his demand except with the permission of her parents. She was therefore, forcibly abducted and done to death. Her dead body was put on fire. Younas appellant satisfied his anger against Mst. Sumera Bibi for not marrying him by killing her and by putting her dead body on fire. This witness was subjected to lengthy cross-examination but neither he could be detracted from his assertion. Nor any material could be elicited in favor of the defence. The main defence put up during cross-examinations before this witness is that Mst. Sumera was a girl of easy virtue, she was carrying on illicit liaison with some boy of the village. She conceived a child and in order to avert shame and disgrace she was done to death by putting her on fire by some one else or she might have committed suicide to save herself from insult and disgrace.
' P.W.10 is Hameedullah. He is a witness of last-seen. According to him, on 18-6-200U at about 9- 00/10-00 a.m. He alongwith Abdul Aziz was present at 15/20 Karams from the complainant's tube- well, he saw that five persons reached there on two motorcycles . The motorcycle was driven by Shamas accused and Younas was sitting behind him. Three other companions were unknown to the witness and as such could not be identified. This witness rushed to the spot to rescue the abductee but the accused being on motorcycle fled away.
' On the next day, i,e, 19-6-2000 this witness joined the investigation and attested the recovery of blood-stained earth and ash vide memo. Exh.P.K. He like other witnesses was also cross-examined at quite some length but the testimony of the witness could not be discarded or vitiated.
' P.W.11 Amjad Majeed is a witness of extra-judicial confession. According to him, Younas and Shamas, appellants confessed before him in presence of the police that they had committed murder of Mst. Sumera Bibi and thereafter put her on fire. Thereafter both the accused led to the recovery of motorcycle. Both the accused pointed out the place of occurrence. Younas got recovered a matchbox alongwith a packet of cigarettes. He attested the memo. Of pointation.
' The learned counsel objected to the admissibility of the statement. However, the resolution of the objection was kept pending. During course of judgment the learned trial Judge did not make any reference to the admissibility or evidentiary value of joint confession, joint recovery of motorcycle or the joint pointation by Younas and Shamas vis-a-vis the place of occurrence. However, recovery of matchbox alongwith cigarettes is attributed to Younas appellant alone. A few questions were put to this witness, may be for the reason that bulk of his statement comprised of inadmissible evidence. The only suggestion was put that he deposed in favor of the prosecution as he belonged to the complainants' brotherhood.
' The last witness is Muhammad Hussain, S.-I. Who conducted the investigation. The necessary features and detail of investigation has already been noted above. This witness during cross- examination stated that a per his investigation Younas and Ashraf did not participate in the abduction of Mst. Sumera Bibi from the tube-well. He, however, added that he searched the accused within the vicinity of village Merajke and they were arrested on 23-6-2000, i,e, after a week.
8. On close of the prosecution evidence, the learned prosecutor tendered in evidence report of Chemical Examiner as Exh.P.N. And that of Serologist Exh.P.Q.
9. The appellants were examined under section 342, Criminal Procedure Code. Shamas Din appellant gave his age as 18 years meaning thereby that he was of 15 years at the time of occurrence. He denied all the allegations and pleaded that he had been falsely involved being nephew of the Muhammad Younas. Muhammad Younas in his statement under section 342, Cr.P.C.
Gave his age as 35 years. He denied the allegations of abduction and murder and also disowned the recoveries. In answer to question No,10, he made the following reply:-- "I am innocent. The fact of the matter is that I was married with Razia Bibi a sister of the deceased Sumera Bibi about 10/12 years prior to the occurrence but no issue was born as a result of said wedlock. About two years prior to the occurrence I desired to divorce Razia Bibi and sent her to the house of her parents. My relations with my in-laws on this count became strained. A suit for dissolution of marriage on behalf of Razia Bibi against me is pending in Civil Court. Sumera Bibi deceased was a girl of easy virtue and was carrying on illicit liaison with young boys of the village and thus, became pregnant. She met her death at the hands of somebody else or she was murdered by her .Parents as her pregnancy came to light in the village. It defamed the complainant and her family. I have been involved with a fabricated version concocted by the complainant with connivance of his well-wishers and the police because of hostilities existed between me and the complainant family."
' Neither of the accused persons adduced any evidence in defence nor they opted to appear as their own witness under section 340(2), Criminal Procedure Code.
10. After hearing the learned counsel and going through the evidence, we find that the prosecution case is based on the following pieces of evidence. Firstly there is evidence of abduction of Mst.
Sumera Bibi by Shamas Din and Muhammad Younas alongwith Muhammad Ashraf and three other companions. Muhammad Ashraf was declared innocent and was not even challaned to Court. The complainant claims to be eyewitness of the abduction. Complainant, Nazir Ahmad, P.W.9 and Hameed Ullah P.W.10 are witnesses to the factum of abduction.
' Next is evidence of extra-judicial confession. Amjad Majeed P.W.11 and Nazir Ahmad son of Nawab Din are two witnesses in this regard.
' The third is evidence of motive, which has been supplied by Nazir Ahmad, complainant P.W.9 and has even been admitted by Muhammad Younas to the extent of being married to Mst. Razia Bibi and also that she did not give birth to any issue. Younas also admitted that he intended to divorce Mst. Razia and, therefore, sent her back to the house of her parents. His relations with in-laws became strained. He also filed a suit for dissolution of marriage.
' Fourth is the medical evidence coupled with the reports of Chemical Examiner Exh.P.N. And Serologist Exh.P.Q.
' Lastly the prosecution version as adjudged by comparing the same with the defence plea, the prosecution version finds support not only from the above pieces of evidence but also from the attending circumstances.
11. In the first instance, we take up the case of Muhammad Younas. He is the appellant who has the motive to eliminate Mst. Sumera. According to complainant Muhammad Younas had been married to Mst. Razia elder sister of Mst. Sumera deceased about 10/12 years prior to the occurrence. In spite of a long lapse of time no child was born out of the wedlock. Muhammad Younas was annoyed with Mst. Razia as she could not give birth to any issue. Muhammad Younas being son-in-law of Nazir Ahmad, complainant and brother-in-law of Mst. Sumera Bibi obviously used to visit the house of the complainant quite frequently. He had an easy access to Mst. Sumera deceased who was just a juvenile aged about 16 years. Muhammad Younas according to his own admission wanted to divorce Mst. Razia, the statement of the complainant that Muhammad Younas developed illicit relations with Mst. Sumera Bibi appears to be true and can safely be relied upon in view of the admitted fact that Mst. Sumera had conceived a child and was pregnant at the time of her murder.
She had a fetus of over seven months. The statement of Nazir Ahmad that Younas had developed illicit relations with Mst. Sumera Bibi is supported by the medical evidence. It can be safely inferred from the ongoing circumstances in between Muhammad Younas and his wife Mst. Razia Bibi that he would have developed relations with Mst. Sumera and the allegations that he intended to marry Mst. Sumera does not appear to be a mere hoax but the circumstances lend full support to this assertion by the complainant. It, therefore, transpires that Muhammad Younas intended to marry Mst. Sumera but she did not accede to his demand. Similarly her father who is father of Mst. Razia as well, naturally would have opposed Muhammad Younas appellant in this regard. As a father he could not accept that his elder daughter may be divorced and younger one may be given in marriage especially when he had smelled a foul play in between Muhammad Younas and Mst.
Sumera Bibi. Muhammad Younas aggrieved on account of refusal by the complainant and the deceased chose to forcibly abduct Mst. Sumera Bibi from her house. The factum of abduction by Muhammad Younas appellant is fully established.
' Although according to the complainant and the prosecution, five persons abducted Mst. Sumera Bibi, out of them Younas, Shamas and Ashraf could be identified whereas their two unknown companions could not be recognized. Ashraf accused was found to be innocent during investigation. He was not even sent up for trial. The complainant did not agitate against the discharge of Muhammad Ashraf. The prosecution appears to have come forward with some exaggerated account, may be on account of suspicion or may be due to the family friction, which admittedly existed in between the parties. The statement of Nazir Ahmad complainant and Hameedullah P.W.10 regarding abduction of Mst. Sumera Bibi, by Muhammad Younas and Shamas Din is to be read and analyzed with caution. Their statement to the extent of Muhammad Younas is amply supported by other factors. However, their statement qua participation of Shamas Din cannot safely be relied upon for various reasons to be discussed infra. However, the prosecution has successfully proved that Mst. Sumera had been abducted by Muhammad Younas on the day of occurrence, i,e, 18-6-2000. The other pieces of evidence apart from extra-judicial confession as brought on record by Nazir Ahmad son of Nawab Din (P.W.7) and Amjad Majeed (P.W.11), there is medical evidence. Medical evidence may not by itself prove that who committed murder but the same provides credible support and corroboration to other pieces of evidence. The medical evidence in this behalf has been furnished by P.W.3 Doctor Shakeela Faheem. Her statement and observations have been referred above in detail. The clinical observation made by the doctor coupled with the two exhibits, i,e, report of the Chemical Examiner Exh.P.N. And report of Serologist Exh.P.Q., there remains no doubt that Mst. Sumera was done to death in the first instance because her Hyoid bone was found to be fractured and thereafter she was put on fire in order to destroy or screen evidence. The defence has not challenged the reports by the doctor or by the experts. Mst.
Sumera, who had been abducted as discussed above by Muhammad Younas, was subsequently, murdered. The evidence of two witnesses not only to the extent of abduction but their evidence is also "last-seen". Mst. Sumera was last-seen in the, company of Muhammad Younas and his companions. Subsequently she was done to death. The time she was taken from her house and was done to death and burnt she was not found alive. Although the defence is not supposed to disprove the case by counter-evidence but at the same time when reliable and believable evidence regarding the abduction and last-seen comes on the record and the same is relied upon by the Court then the duty is cast upon the defence to explain as to how and in what manner the deceased was done to death. In absence of any explanation the legal as well as equitable presumption would be that the abductor has murdered the deceased. In the present case Mst.
Sumera was abducted by Muhammad Younas who had a motive to do the same and in between her abduction and murder no one saw her alive. Therefore, irrefutable legal presumption is that Muhammad Younas is her murderer. The legal presumption is also a piece of circumstantial evidence among other pieces of evidence as noted above. Mere denial by Muhammad Younas that he had been falsely implicated cannot be accepted as sufficient explanation qua murder of Mst. Sumera. The learned defence counsel has disputed the admissibility of statement of Amjad Majeed (P.W.11) as according to him a joint confession or joint pointation is of no legal value. The objection is not without substance. It is not only unsafe to rely upon a joint confession or joint pointation, the same is also contrary to the known principles of law. The evidence of extra-judicial confession as furnished by Amjad Majeed (P.W.11), therefore, looses its force.
12. The second witness of extra-judicial confession, i,e, Nazir Ahmad son of Nawab Din (P.W.7) relates primarily to the statement of Shamas Din. According to him, Shamas explained before him that he called Mst. Sumera from her house at the instance of Muhammad Younas who asked him to bring her out of the house on a false pretext of providing her medical treatment. Perusal of his statement instead of establishing his guilt rather supports the defence of Shamas that he was used as a tool to get Mst. Sumera abducted. It, in a way intends to get him exonerated.
13. As regards participation of Shamas Din, it seems to be doubtful for many reasons. Firstly he was a young boy of 15/16 years at the time of occurrence. His collaboration with his maternal-uncle to abduct Mst. Sumera for illicit purpose does not appeal to reason. Shamas has no direct motive to abduct Mst. Sumera or thereafter to murder her. According to the prosecution, Muhammad Younas obtained services of two or three other persons. As such association of Shamas for abducting Mst.
Sumera was hardly required except that he may have been used to bring Mst. Sumera out of her house. Whether Shamas was aware of the intention or designs of Muhammad Younas and his companions cannot be conclusively inferred from this fact alone. According to Shamas when he came forward with his first version before Nazir Ahmad (P.W.7) he pleaded his innocence. Other pieces of evidence such as medical evidence or motive etc. Do not directly connect Shamas with commission of crime. Shamas is, therefore, extended benefit of doubt. He has been sentenced to imprisonment for life. His conviction and sentence under section 302(b)/34, P.P.C. And fine of Rs,10,000 as compensation are set aside. He is acquitted of the charge. He be released forthwith if not required in some other case.
14. As observed above, Muhammad Younas has been found to be guilty. He has been convicted under section 302(b), P.P.C. And has been sentenced to death. His conviction under section 302(b), P.P.C. Is unexceptionable. However, as regards quantum of sentence, we are of the view that according to prosecution's own case it was not Muhammad Younas alone who abducted the deceased and thereafter his contribution towards murder, whether he alone is responsible and his companions also contributed in the murder remains in dark. In such situation benefit of lesser sentence is given to convict, we, therefore, consider that instead of extreme penalty of death, Muhammad Younas appellant may be awarded lesser penalty of imprisonment for life.
15. In nutshell in the light of the above discussion and observations, the conviction and sentences of Shamas Din appellant are set aside. His appeal, i,e, Criminal Appeal No,141/L of 2003 as such is allowed. Conviction of Muhammad Younas appellant under section 302(b), P.P.C. Is upheld.
However, his sentence of death is converted to imprisonment for life. He has been ordered to pay Rs,50,000 as compensation to the legal heirs of the deceased, the same is maintained. It will be recovered as arrears of land revenues and shall be paid to the legal heirs of the deceased. In default thereof to undergo six months' S.I. The benefit of section 382-B, Cr.P.C. Is extended to the appellant Muhammad Younas.
16. The sentence of death is not confirmed and the murder reference is answered in the negative.