Syed Afzal Haider, J.--Appellant Muhammad Arif through Criminal Appeal No, 49/L/2003 has challenged the judgment dated 09.01.2003 delivered by learned Additional Sessions Judge, Toba Tek Singh, whereby he was convicted under Section 457 of the Pakistan Penal Code and sentenced to four years rigorous imprisonment with fine of Rs, 10,000/- or in default whereof to further undergo two months rigorous imprisonment. He has further been convicted under Section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to eight years rigorous imprisonment with fine of Rs, 20,000/- or in default whereof to further undergo three months rigorous imprisonment. Both the sentences were ordered to run concurrently with benefit of Section 382-B of the Code of Criminal Procedure.
Muhammad Shafique complainant has filed Criminal Revision No, 12/L/2003 for enhancement of sentence awarded to the appellant. The aforementioned Criminal Appeal as well as the Criminal Revision will be disposed of by this Judgment as both the matters arise of the same impugned judgment.
2. The prosecution case in brief is that complainant Muhammad Shafique PW.8 lodged a crime report registered with Police Station Kamalia as F.I.R No, 201/01 dated 18.07.2001, Ex.PD/1, under Section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 read with sections 302/201 of the Pakistan Penal Code wherein he alleged that on 18.07.2001 at about 4.00 a.m. his sister Mst. Farkhanda Bibi PW. 10 made a distress call on phone requiring him to reach her house immediately whereupon he alongwith Abdul Rashid reached her house at 5.00 a.m. and saw that his Behnoi Hafeez-ur-Rehman PW.9 had made his family members sit horrified in one corner of the house while Mst. Shamaila was lying dead on a cot. Hafeez-ur-Rehman was stitching the neck injury sustained by her but on seeing them, he fled away. Mst. Farkhanda Bibi informed the complainant that at about 2.30 a.m. she alongwith her family members was sleeping in her house.
They woke up on hearing some noise. Her husband Hafeez-ur-Rehman went into the room and found accused Arif and Mst. Shamaila Bibi deceased in objectionable position whereupon he picked up a Toka and entered into the room with intention to kill both of them. Arif accused made good his escape after pushing Hafeez-ur-Rehman but the latter murdered Mst. Shamaila Bibi with his Toka. It is further stated that Hafeez-ur-Rehman, in order to conceal his crime, was sewing the neck injury of Mst. Shamaila and on their arrival he fled away.
3. Police investigation ensued as a consequence of registration of crime report. Asmat Ullah, Sub- Inspector/SHO PW. 12 had investigated the case. He recorded statement of the complainant Ex.PD on 18.07.2001 and sent the same to Police Station through Abdul Ghaffar Constable for registration of criminal case. He visited the place of occurrence, inspected the dead body of Mst. Shamaila, prepared injury statement Ex.PF and inquest report Ex.PF/1 and sent the dead body for autopsy through Nisar Ahmad Constable. He recorded statements of the witnesses under Section 161 of the Code of Criminal Procedure, inspected the place of occurrence, prepared site-plan Ex.PG and took into possession a pair of softi/slippers, P. 1/1-2 through recovery memo Ex.PA, which recovery was attested to by Qasim Ali and Muhammad Shafique PWs. He also took into possession last worn clothes of the deceased and one scaled envelope alongwith one phial through recovery memo Ex.PH. After receiving the report of post mortem examination he added Section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and deleted the original offence under Section 18 of the Ordinance ibid. He took the draftsman to the spot who took rough notes. On 22.07.2001 the draftsman prepared a site-plan Ex.PB according to scale. His statement was recorded under Section 161 of the Code of Criminal Procedure. The Investigating Officer arrested accused Muhammad Arif on 24.07.2001, got him medically examined and sent him to judicial lock up on 25.07.2001. He arrested Hafeez-ur-Rehman accused on 26.07.2001 and took into possession Toka P- 2 through recovery memo Ex.PJ which was produced by Hafeez-ur-Rehman accused. He recorded statement of Hafeez-ur-Rehman (accused in the murder case) as an eye-witness in the Hudood case. He prepared separate reports against Muhammad Arif accused and Hafeez-urRehman accused under Section 173 of the Code of Criminal Procedure requiring the accused to face separate trials.
4. The learned trial Court as a consequence of the receipt of aforementioned police report proceeded to frame charge against accused Muhammad Arif on 14.05.2002 under Section 457 of the Pakistan Penal Code as well as Section 10(2) the Offence of Zina (Enforcement of Hudood)
Ordinance WI of 1979. The accused did not plead guilty and claimed trial.
5. The prosecution produced twelve witnesses at the trial to prove its case. The gist of witnesses for the prosecution is as follows:--
(i) PW.1: Nisar Ahmad Constable had taken the dead body to Civil Hospital Kamalia for post- mortem examination. The Woman Medical Officer handed over to him the last worn clothes of the deceased, a scaled phial, police papers and post-mortem report which were handed over by him to the Muharrir.
(ii)PW.2: Muhammad Arshad Constable had delivered a scaled phial and envelope in the office of Chemical Examiner which was entrusted to him by the Muharrir.
(iii)PW.3: Qasim Ali stated that on 18.07.2001 he joined the investigation and had attested the recovery memo Ex.PA alongwith Muhammad Shafique PW whereby the police took into possession a pair of softi slippers of brown colour P.1/1-2 from the spot.
(iv)PW.4: Muhammad Ashraf Draftsman had prepared scaled site-plan Ex.PB with scale 1 inch = 8 feet and handed over the same to the Investigating Officer.
(v)PW.5: Dr. Shafqat Hussain had medically examined Muhammad Arif accused and found him sexually potent.
(vi)PW.6: Shamshad Ali Head Constable had recorded FIR Ex.PD/1 on 18.07.2001. He received one scaled parcel and one scaled envelope from the Investigating Officer and kept the same in Malkhana which was handed over to Muhammad Arshad Constable on 23.07.2001 for onward transmission to the office of the Chemical Examiner, Lahore.
(vii) PW.7: Dr. Zareena Chaudhry had conducted post-mortem examination on the dead body of Mst. Shamaila deceased and observed as under:-- "External appearance; It was a dead body of a healthy young girl aged about 20 years lying on the post-mortem table.
Dead body was clad in mehndi colour printed qameez and yellow colour printed shalwar. She was looking pale, with rigor mortis all over the body. The eyes and mouth were closed and cars and nose were clear. No blood stained were observed over the body.
Injuries:
1. A multiple contusion in different sizes ranging from 1 cm to 5 cm on face, both shoulders, hands and fore-arms.
2. All wounds were stitching on opening the wounds.
3. An incised wound 8 cm x deep upto bone on the left face extending from the left car to the left mendibular angle.
4. An incised wound 6 cm x 1 cm deep just below Injury No, 2 on left side of neck.
5. An incised wound 17 cm x 3 cm upto vertebral column on front cutting trachea oesophagus and blood vessels of left side of neck extending from right mandibular to left ear lobule below Injury No, 1.
6. An incised wound 4 cm x % cm in skin deep in front of neck sign of bleeding around the injuries were present.
All the injuries were ante mortem.
Cranium and spinal cords: All normal and healthy and same was the position of membranes, brains and spinal cords.
Thorax.
All Organs of thorax were normal and healthy.
Abdomen All organs of abdomen were healthy and normal. All abdominal viscaras and uterus were normal.
On local examination hymen was found torn and vagina admitted two fingers easily.
Muscles, bones and joints All were normal and healthy, as already mentioned.
Opinion In my opinion cause of death in this case was excessive bleeding and cut of throat which resulted in cardio respiratory failure due to Injury No, 4 which was sufficient to cause death in ordinary course of nature. The deceased was habitual to sexual intercourse.
All the injuries were inflicted by sharp edged weapon except Injury No, 1.
The probable time which elapsed between injury and death was within 5 minutes while between death and post-mortem examination was within 24 hours."
(viii)Muhammad Shafique complainant appeared as PW.8 and endorsed the contents of the crime report Ex.PD/1.
(ix)Hafeez-ur-Rehman father of Mst. Shamaila deceased appeared as PW.9 and stated that in the night between 17/18.07.2001 he alongwith his family members were sleeping on the upper story of his house. At about 2.30 a.m., he woke up on hearing noise in the ground floor and found that Mst.
Shamaila was not available on her cot. He alongwith his wife saw that Muhammad Arif accused was committing zina with his daughter M.st. Shamaila. He had seen the occurrence from a distance of ten feet in electric light. Arif accused managed to escape but his obnoxious act forced him to murder Mst. Shamaila.
(x)Mst. Farkhanda Bibi mother of Mst. Shamaila deceased appeared as PW.10. She corroborated the statement of her brother Muhammad Shafique PW.8.
(xi)PW. 11: Arshad Javaid had identified the dead body of Mst. Shamaila at Tehsil Head Quarter Hospital Kamalia at the time of post-mortem examination. .
(xii) PW. 12 Asmat Ullah Sub Inspector/Station House Officer had undertaken the investigation whose detail has already been mentioned in Paragraph 3 of this judgment.
6. The prosecution closed its case on 02.11.2002. Thereafter the learned trial Court recorded statement of accused under Section 342 of the Code of Criminal Procedure on 18.11.2002. The accused denied the allegations leveled against him and stated as under: "I am son of poor cobbler. The God had blessed me with fast colour, charming and attractive face with good health and education and after doing bachelor in commerce I joined as a cashier at Motorway Restaurant Bhera. Mst. Shamaila deceased was a naik scerat lady, aged about 22/23 years when met her death at the hands of her own father. The parents of Shamaila Bibi first arranged her engagement with one Asif of Kamalia against her wishes and she broke that rishta.
The parents again started negotiation of her rishta in their brother hood at Chechawatni to which she again did not agree. As disclosed later on, on the fateful evening parents of Shamaila deceased summoned Shafique Rehman and Abdul Rashid PWs to persuade Mst. Shamaila to accept her partner as proposed by them to which she not only refused but declared to marry me resulting in to an altercation between the deceased and Hafeezur-Rehman her father. Shafique, Mst. Farkhanda and Abdul Rashid PWs also sided Shafique-ur-Rehman, considering Shamaila as gustakh (disobedient) of her parents and her decision to marry me as dishonour to their family, committed her murder at about 9 P.M. they changed and washed her blood stained clothes, also washed the blood from the floor as well as - from the dead body. They also sewed the wound of the deceased to give colour of natural death, realizing that they committed the murder of innocent girl. Early morning the mohallandars and the persons coming from Fajar prayer having heard the noise of weeping and presence of blood in the drain outside the house of Hafeez-ur-Rehman, started whispering and they apprehending that true picture may not come to light, give up the plan already made an dafter having taken Asmat Ullah SHO/I0 in confidence invented false story involving me innocently in the case preventing me from becoming complainant of the murder case of Mst. Shamaila, got registered the present case. Complainant party yielded high political influence and my poor and helpless father could not pursue my case before the police.
Investigation conducted in the case is based upon mala fide and is one sided as well.----The PWs are related interse as well as to the deceased. They all had thus motive to falsely deposed against me."
7. Learned trial Court after completing codal formalities of the trial returned a verdict of guilt.
Conviction and sentence followed as mentioned in the opening paragraph of this judgment. Hence this appeal against conviction and revision for enhancement of sentence.
8. We have gone through the file. Evidence of witnesses of prosecution and statements of accused have been perused. Relevant portions of the impugned judgment have been scanned.
9. The reasons that prevailed upon the learned trial Court to record conviction of the appellant may be summarized as follows:--
(i) Place of occurrence where murder of Mst. Shamaila Bibi took place was not disputed;
(ii) Presence of Hafeez-ur-Rehman, the father who murdered his daughter and Mst. Farkhanda, his wife, is not challenged; (iii)Accused was identified at the spot by the mother and father of deceased. The spot was the house of Hafeez-ur-Rehman. Accused was identified in the electric light; (iv)Accused was seen committing Zina with deceased Shamaila Bibi; (v)There was nothing to discard the direct evidence of parents of deceased; and (vi)The provocation offered to parents was so intense that the father committed the murder of his young daughter. It was also found that accused had trespassed into the house of Hafiz-ur- Rehman.
10. Learned counsel for the appellant raised the following points for the consideration of Court:--
(i) That there was material contradiction between medical and ocular testimony;
(ii) That the recovery of Chappal from the place of occurrence does not connect the accused with the occurrence because the softy slipper was commonly available in the market; (iii)That the time and date of occurrence as recorded in the F.I.R does not correspond with the time of death recorded by the doctor in the post-mortem report; (iv)That the evidence of the draftsman did not disclose the place from where the accused sought entry into the house and the place of his exit; and lastly
(v) That the appellant and the deceased loved each other and appellant wanted to marry her. The deceased refused proposals arranged by her parents and a scuffle ensued on the fateful night where-after Hafeez-ur-Rehman P.W.9, father of the deceased, killed her for her insistence on marriage with the appellant who has all the merits of an eligible groom except his lowly descent being son of a cobbler.
11. In order to substantiate his contentions learned counsel for the appellant relied upon portions of evidence of P.W. 1 Nisar Ahmad, constable on the question that crime report was not recorded as stated by complainant. Reliance was also placed on the evidence of P.W.3 Qasim Ali to challenge the factum of recovery of softi slipper. Reference was made to the evidence of draftsman P.W.4 Muhammad Ashraf who did not point out the places of entry and exit of accused. Lastly the evidence of lady doctor as regards the time of death was referred to by the learned counsel for the appellant.
12.Learned Deputy Prosecutor General supported the conviction and maintained that the accused was the cause of death of Mst. Shamaila Bibi and did not deserve leniency. It was also stated that the eye-witness account was unshaken.
13.Our observations, after considering various aspects of this case, are as follows:-- (i)That the appellant and deceased had an affair as is evident from the local examination of vagina which admitted two fingers easily. The fact that the incident took place in the ground floor, while the residents of the house were asleep during summer night on the upper storey, shows that the entry of the appellant at that hour of the night was facilitated by deceased herself; (ii)That on hearing noise during the night and finding that the cost of his daughter was vacant, Hafeez-ur-Rehman, P.W.9 followed by his wife came down and saw a shameful scene in his own house in which his own daughter was involved. There was no doubt about identification because the appellant was not unknown and the electric bulb was shedding light. The father, with a peculiar social background could not digest what he had seen with his own eyes. He intended to kill both but the appellant managed to escape leaving his love behind to suffer consequences of what was done by both of them. The direct evidence of the father and mother, whose presence in the house has not been doubted, is sufficient to bring home the charge of Zina.
(iii)The crime report was lodged without any meaningful delay. The accused was duly nominated not for murder but for Zina alone on the basis of evidence of parents of deceased. Hafeez-ur- Rehman P.W.9 stated very honestly that he intended to kill both of them. There is nothing to doubt his version and he has no reason to falsely involve the appellant. The scene created partly by the appellant and duly witnessed by Hafeez-ur-Rehman, prompted the latter to take an extreme step; (iv)On a careful perusal of medical evidence the learned counsel for the appellant was not able to establish that the time of death and the date of death as recorded in the post-mortem report did not corroborate the time of death alleged by the prosecution; (v)The non-mention in the site-plan Ex.PB of the points of entry and exit of the accused from the house of Hafeez-ur-Rehman does not demolish the prosecution case for the simple reason that entry or exit of accused from this or another place was never alleged by the prosecution. The deceased had invited her paramour during the night and the entry door must have been opened by her. Since no witness had seen the accused enter the house from a particular point so no evidence could have been led on that point nor was it at all necessary; (vi)Insofar as the recovery of softi slipper is considered we feel that the said type of slipper is of common use and possibly does not link the accused with the offence;
(vii) We are also in agreement with learned counsel for the appellant, though for different reasons, that conviction and sentence under Section 457 of the Pakistan Penal Code under the circumstances cannot be maintained; and 14.In view of what has been stated above, the conviction and sentence recorded under Section 457 of the Pakistan Penal Code is set aside. However, in view of negative report of Chemical Examiner and lack of medical corroboration of the allegation of commission of Zina, the conviction of the appellant is being recorded under Section 10(2) read with S. 18 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979. Consequently he is sentenced to 3 years rigorous imprisonment with fine of Rs, 20,000/-, or in default three months simple imprisonment. Benefit of Section 382-B of the Code of Criminal Procedure has already been extended to the convict which would continue.
15.With above modification in conviction and the sentence, Criminal Appeal No, 49/L of 2003 partly succeeds. The appellant is not present. He be taken into Police custody and sent to jail to serve the unexpired portion of his sentence.
16.We have considered Criminal Revision No, 12/L of 2003 for enhancement of sentence. For reasons recorded above, we are not inclined to accept the grounds urged in support of the revision for enhancement because there is nothing to show that the discretion in awarding the sentence was exercised arbitrarily. Therefore, this Criminal Revision No, 12/L of 2003 is dismissed.