' JUSTICE SARDAR MUHAMMAD RAZA KHAN (MEMBER).--- Malik-ud-Din, along with his father, brother and a sister-in-law named Mst. Hassan Zari (wife of his elder brother Nawab Din) had taken up residence in new Abadi Labour Colony, Satra Meel, District Islamabad.. On the night of occurrence (27-4-1997), the father along with his two sons Malik-ud-Din; Ajab Din and Hassan Zari, the daughter-in-law, were present in the house. Hassan Zari after completing her chores had left the kitchen for the room where she slept. She was passing through courtyard when a report of tire shot was heard. Malikud-Din and his younger brother Ajab Din rushed towards the courtyard where there was one Kata Baz armed with a .30 bore pistol along with his two sons Mir Baz and Mir Nawaz and another Hurmat Khan, who all belonged to village Gundhab, Tehsil and District Nowshera. The family aforesaid also originally belonged to the same village. .
2. With the report of fire shot, Mst. Hassan Zari made a cry and fell to the ground. Seeing the two brothers, all the assailants ran away from the spot. On the uproar of the inmates of the house many people from the neighbourhood got attracted to the spot. Mst. Hassan Zari succumbed to the only injury caused on the left side of her neck. Old enmity with the family of Kata Baz aforesaid is alleged to be the motive and also that due to such enmity the victim family was forced to abandon their Village. Malik-ud-Din had lodged the report before the police to the above effect on the spot when the police arrived there in response to an information on telephone.
3. All preliminary steps towards necessary investigation were taken up by the police. The husband namely Nawab Din of the deceased was said to be at Karachi but it appears from the evidence that he too was an absconder in connection with some case back in the village. The Investigating Officer went to the native village of the deceased where he had extensive dialogue with the parents and brothers of Mst. Hassan Zari. The aforesaid relatives strongly suspected Malik-ud-Din complainant for having committed murder of Mst. Hassan Zari after commission of rape.
4. The accused Kata Baz and one another were, of course, arrested in the case but subsequently discharged. Malik-ud-Din complainant was considered as an accused. Various coercive measures under the law were adopted to procure his attendance but he went into hiding. During such pressure Malik-ud-Din is said to have had contacted Hassan Khan (P.W.13) so as to effect a compromise between him and the aggrieved family. He confessed his guilt before Hassan Khan.
Hassan Khan contacted and summoned his friend Gul Sadbar, the real brother of the deceased and arranged a meeting, in which also, Malik-ud-Din confessed his guilt and begged forgiveness.
Both, Gul Sadbar and Hassan Khan produced accused Malik-ud-Din before the Investigating Officer of Police Station Bhara Kahu, Islamabad.
5. After trial, learned Additional Sessions Judge, Islamabad vide his judgment dated 4-11-2000 convicted Malik-ud-Din accused under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced him to imprisonment for ten years etc. For committing the murder of Mst. Hassan Zari, he was further convicted under section 302(b), P.P.C. And sentenced to death. He filed an appeal before the learned Federal Shariat Court who vide judgment, dated 2-4- 2002 acquitted him of all charges. Gul Sadbar, the real brother of the deceased has filed this appeal against Malik-ud-Din's acquittal, where A leave was granted by this Court on 13-10-2004 to reappraise the evidence in its true perspective.
6. It is a case exclusively based On circumstantial evidence. All the circumstances taken together point only toward Malik-ud-Din the complainant. It would be convenient to commence in the order in which things occurred.
7. It is admitted in the F.I.R. As well as in the entire evidence that the complainant family has a blood feud with Kata Baz, etc. Back in the village. It is also admitted that because of such enmity the complainant family had to leave their village. The gravity of the situation would no doubt demand that if Kata Baz along with his two sons and another companion came all the way from the village to Satra Meel and succeeded in even entering the house of his run-away enemies, they would certainly attack the male members with whom they had the enmity. It does not appeal to reason that they would kill Mst. Hassan Zari, the only lady in the house and would run-away despite the fact that Malik-ud-Din and his brother Ajab Din were available as unarmed easy target. What is depicted by the complainant in the F.I.R. Is, not only unnatural and unbelievable but is utterly beyond the cultural norms of enmity in the area Lodging of an absolutely false F.I.R. Is a point towards the guilt of complainant Malik-ud-Din.
8. When during and as a result of investigation, the police got closer and closer to the respondent Malik-ud-Din, he made himself scarce to the police and even did not contact the police in connection with the progress of his own complaint. This is another circumstance indicative of his guilty mind.
9. When the net got shrunk around him, he really felt concerned about it to the extent of getting scared. It was all the more serious in the wake of his family's deep rooted blood feud with the family of Kata Baz in which connection his elder brother Nawab Din was an absconder. Feeling totally isolated, when his fears became worst confounded, he was left with the only choice to seek refuge through amicable settlement. His contacting Hassan Khan (P.W.13) and through him Gul Sadbar (P.W.7), the real brother of the deceased, was but most natural and the only way to survival.
Though extra judicial confessions never sound natural in majority of cases yet in the instant case the extra-judicial confession, in order to achieve settlement, was the only way out. We observe that such confession before Hassan Khan (P.W.13) and Gul Sadbar (P.W.7) sounds quite natural. It is further supported by the fact abundantly available on record, that Hassan Khan and Gul Sadbar, as a result of such extra-judicial confession, had produced Malik-ud-Din before Satra Meel Police.
10. One might inculcate doubt that Gul Sadbar happens to falsely implicate Malik-ud-Din. This is likely to happen only when there is some enmity between the two. In the present case there is no such-like possibility or even probability at all. Gul Sadbar is closely related to Malik-ud-Din, being the younger brother-in-law of his deceased sister. The families have cordial relationship and above all Mst. Gul Bano, wife of Gul Sadbar happens to be the real sister of Malik-ud-Din accused.
No husband would at all feel convenient in bringing about a capital charge against the real brother of his own wife unless it is absolutely true. This circumstance, further lends support to the prosecution story.
11. The police has recovered a .30 bore pistol being a weapon of offence at the instance of accused Malik-ud-Din. The trend of cross-examination and the stance taken by the accused is to the effect that such pistol was the licensed pistol of his elder brother Ala-ud-Din. Even if it is so, which it is not, there is no problem in using even the licensed or unlicensed pistol of his brother. No such licence has ever been produced.
12. Ala-ud-Din was produced in defence. He has attempted to absolve the accused Malik-ud-Din but he was never an eye-witness so as to be certain of his brother's innocence. He himself was in service posted at Chamman, Balochistan. Claims title to the pistol but till today he never even asked for Superdari thereof despite the fact, as alleged, that it was a service licence. This discussion almost attains unnecessary academic 'dimensions because, as observed earlier, once an offenderH makes up his mind to commit an offence like murder, it is altogether immaterial for him whether the weapon belongs to him or not or whether it is licensed one or not.
13. The husband of Mst. Hassan Zari, in the instant case, because of his being an absconder, did not come to the forefront. Anyhow he is said to have attacked accused Malik-ud-Din by firing, who escaped death yet received injury. Dr. Abdul Naeem (P.W.2) from Begum Jan Hospital, Lehtrar Road proves his having received treatment for such injury. The accused claimed all that to be fake but had it not been true, he could have produced his brother Nawab Din in defence like he examined Alaud-Din and Ajab Din. To save his brother from the gallows and to appear as his witness would not have been a bargain of loss at the cost of his surrender.
14. We are of the firm view that all the circumstances taken together from a chain of events that point towards Malik-ud-Din accused alone and do not admit of any other hypothesis indicative of his innocence. The learned Additional Sessions Judge, Islamabad has rightly appreciated evidence on record and the learned Federal Shariat Court has fallen into error by holding otherwise. As the matter is based purely on circumstantial evidence, we hold that the normal penalty of death would not be in the interest of justice.
15. So far as the offence under section 10(3) of the Ordinance of 1979 is concerned, no doubt vaginal swa bs of the deceased are stained with semen but as the semen can be retained for a reasonable duration, one cannot conclude that only and only the accused was responsible for it. Under this charge he is extended the benefit of doubt.
16. The above are the reasons on the basis of which we have acquitted the accused through our short order dated 17-11-2006 and, on acceptance of the appeal of Gul Sadbar, had convicted Malik- ud-Din respondent, under section 302(b), P.P.C. And sentenced him to imprisonment for life with a compensation of Rs,50,000 for the legal heirs of the deceased, in default of payment whereof, the accused was to undergo simple imprisonment for six months in addition to the other mode of recovery mentioned in the section itself.