' RIZWAN ALI DODANI, J.---Appellant Imran alias Mani has, through this appeal, challenged the judgment dated 27-5-2004 delivered by learned Additional Sessions Judge, Wazirabad whereby he was convicted under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 and sentenced to 7 years' rigorous imprisonment with fine of Rs.10,000. He was further convicted under section 302(b)/34, P.P.C. And sentenced to death on two counts and also to pay Rs.1,00,000 as compensation to the legal heirs of each of the deceased i.e. Muhammad Siddique and Ghulam Sakina and on each default to further undergo 6 months' S. I. The learned Additional Sessions Judge Wazirabad has submitted murder reference for confirmation of death sentences awarded to appellant Imran alias Mani, which was registered as Murder Reference No.8/L of 2005.
' It is pertinent to mention here that Mst, Memona, co-accused was also convicted and sentenced along with appellant Imran alias Mani by the same judgment. She filed Criminal Appeal No.165/L of 2004 against her convictions and sentences. She was granted bail by this Court vide Court's order, dated 14-10-2004 in Criminal Appeal No.165/L of 2004. She, after obtaining bail, disappeared and in spite of repeated Notices and execution of warrants for her arrest she could not appear before the Court. Therefore, her appeal is separated.
2. Brief facts of the prosecution case as narrated by Nasrullah Khan complainant P.W.7 are that Muhammad Siddique his paternal uncle (Chacha) had three sons including Muhammad Mansha (husband of co-accused Mst. Memona) and two married daughters Mst. Shamim Kausar and Mst.
Robina. Kausar. Co-accused Mst.Memona along with her parents-in-law Muhammad Siddique and Ghulam Sakina was residing in the village Khewaywali. Muhammad Mansha and his other brothers were abroad. Muhammad Mansha had gone there three months ago to the occurrence. Co- accused Mst. Memona was not of good moral character and she had developed illicit relations with her co-villager/accused Imran Ahmad alias. Mani and they used to meet each other off and on . His uncle and aunt (Chacha and Chachi deceased of this case) used to supervise Mst.Memona and this fact irritated/caused annoyance to accused Mst.Memona. On 29-5-2003 at about 4-30 a.m early in the morning, he (complainant), Khalid Mehmood given up P.W. And Khalid Hussain P.W.8, resident of Faqiranwali a guest in the house of the complainant proceeded from the house to visit their well (Khooh). When they reached in front of the house of Muhammad Siddique deceased, they over-heard whispering from Baithak of Muhammad Siddique. On suspicion, they peeped through the crevice of the window and in bulb's light found that both the accused of this case were committing Zina. They knocked the door (outer door) but it was riot opened. They (P.Ws.) hurriedly through the house of neighbour approached the house of the deceased and witnessed that in one room of the house, both the accused' of this case put Mst. Ghulam Sakina on the floor.
Accused Mst. Memona was sitting on her chest and accused Imran alias Mani was throttling her neck. On the hue and cry, Muhammad Siddique came ahead to rescue Mst.Ghulam Sakina (his wife). Imran alias Mani picked a sewing machine without wooden base case,- lying in the room and hit on the head of Muhammad Siddique, who in injured condition fell down on the ground. They (P.Ws.) overpowered both the accused at the spot. Large public gathered there and Mst.Ghulam Sakina and Muhammad. Siddique were found dead. Imran alias Mani and Memoona accused had murdered both of them to conceal/camouflage their sin. He had then deputed Khalid Mehmood and Khalid Hussain to guard the dead body and himself went to Police to report.
3. That after conclusion of the investigation, the local Police submitted in the court a report under section 173 of the Code of Criminal Procedure requiring both the accused Imran alias Mani and Mst.
Memona to, face trial. Thereafter charge was framed against both the accused vide charge-sheet dated 22-10-2003, under sections 10 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 and 302 read with 34 of the Pakistan Penal Code.
4. That prosecution produced 11 witnesses at the trial in support of its case. Mr. Muhammad Zarait Kiyani, S.P. Investigation was examined as C.W.1. The gist of the deposition of the prosecution witnesses is as follows:--
(i) P.W.1. Dr. Muhammad Jamal Nasir conducted potency test of accused Imran Ahmad alias Mani and found him fit to perform sexual intercourse. He also conducted post mortem on the dead body of Muhammad Siddique aged 70/71 years and observed the following injuries:-- "(1) Lacerated wound measuring 2 cm x 2 cm x going deep on left. Eye brow.
(2) Lacerated wound measuring 1 cm x 1 cm x going deep just above right eye brow with bone pieces visible.
(3) Lacerated wound 1 cm x 5 cm on outer aspect of right eye brow.
(4) An abrasion 3 cm x 3 cm on right side of forehead.
(5) Lacerated wound through and through on outer part of right pinna.
(6) Lacerated wound 1.5 c.m x 1 c.m. x going deep 6 cm behind and above right ear.
(7) Multiple fracture of lower jaw."
' In the opinion of the doctor, all injuries were ante-mortem. Injury No.1 causing the brain damage and brain death along with the injury to larynx leading to asphyxia and death were sufficient to cause death in ordinary course of nature.
' The time between death and injuries was 15 minutes to 30 minutes and the time in between death and post mortem was 12 to 14 hours. Post-mortem report was exhibited as Exh.P13.
(ii) P.W.2: Taqi Raza, A.S.-I. Is an author of the F.I.R.
(iii) P.W.3: Dr. Tehmina Sheerai Toosy conducted post-mortem examination on the dead body of Mst. Ghulam Sakina and found following injuries:--
(1) Bruise 1 x c.m. On left side of chin.
(2) 1 x 1 c.m, contusion (brusise) on left side of neck. 8 cm from ear, 5 cm from mid line.
(3) 2 x 1 cm contused on neck 7 cm from right ear and 4 cm from mid line."
' In the opinion of this doctor, the cause of death was due to injuries Nos. 2 and 3 leading to hyoid bone fracture and it is a type of asphyxial death.
(iv) P. W .4: Muhammad Bashir Constable on 29-5-2003 along with Constable Muhammad Sharif escorted the dead bodies of Muhammad Siddique and Mst. Ghulam Sakina from the place of occurrence to mortuary Wazirabad. This witness also received blood-stained last worn clothes of the deceased from the doctor. On 2-6-2003, he also received from the Moharrar of the Police Station two sealed parcels said to contain swabs and clothes of Mst.Memona accused which he delivered in the office of Chemical Examiner, Lahore. On 5-6-2003 he also received two sealed parcels said to contain blood-stained earth and blood-stained sewing machine from the Moharrar and deposited in the office of Chemical Examiner, Lahore.
(v) P.W.5: Zafarullah identified the dead bodies of Muhammad Siddique and Mst.Ghulam Sakina. He is also a witness of production of last worn clothes of the deceased by a Constable to the Investigating Officer.
(vi) P.W.6: Muhammad Aslam Moharrar of the Police Station corroborated the statement of Constable Bashir P.W.4 with regarding to delivery of different sealed parcels.
(vii) P.W.7: Nasrullah Khan is complainant and eye-witness of the case. He endorsed the contents of his crime report:
(viii) P.W.8: Khalid Hussain is also an eye-witness of the- occurrence. He corroborated the version of the complainant and prosecution story.
(ix) P.W.9: Manzoor Ahmad Inspector/ Station House Officer recorded statement of the complainant and sent the same to the Police Station for registration of the F.I.R.
' During investigation, he visited the place of occurrence; secured dead bodies of the deceased Muhammad Siddique and Mst.Ghulam Sakina; Got conducted post-mortem examination; secured blood of the deceased from the spot; arrested both of the accused Imran alias Mani and Mst. Memoona; got conducted medical examination of both the accused; recovered weapon of offence sewing machine from the crime scene; took into also possession last worn clothes of both the deceased; recorded statements of the witnesses; got prepared rough site plan of the place of occurrence; delivered all the parcels in 'sealed manner to the Moharrar of the Police Station; completed the report under section 173 of the Code of Criminal Procedure and submitted challan in the Court against both the accused.
(x) P.W.10: Arif Hussain Ayyaz, Draftsman prepared sketch plan of the place of occurrence and handed over the same as Exh.P0 and Exh.P0/1 to the Police on 2-6-2003.
(xi) P. W.11: Constable Muhammad Sharif along with Constable Muhammad Bashir escorted the dead-bodies of both the deceased Muhammad Siddique and Mst. Ghulam Sakina to the mortuary.
He also received last worn clothes of the deceased Mst. Ghulam Sakina from the lady doctor and he produced the same before the Investigating Officer who secured it through recovery memo.
Exh.P-E attested by the witnesses.
(xii) CW-1: Muhammad Zarait Kiyani, S.P Investigation verified the investigation conducted by the local Police; S.H.O. And ASP Wazirabad.
5. After closure of prosecution evidence, the accused facing trial were examined under section 342 of the Code of Criminal Procedure. They, inter alia, pleaded innocence and claimed that they had been falsely involved due to enmity. In reply to the question "why this case against you and why the P.Ws. Have deposed against you?" the accused/appellant Imran alias Mani stated as follows:-- "I have been falsely implicated in this case due to political enmity. I was member of Zulfiqar Group of Khewaywali, which is opponent of Nasrullah complainant group. I have not participated in this occurrence in any manner. Neither I visited the house of deceased on the night of occurrence, for dacoity purpose or for commission of Zina with my co-accused Mamoona or for murder of the deceased persons. The instant occurrence was committed by Tariq Sunara (goldsmith) who has his goldsmith shop in front of house, of the deceased and is resident of Ghakhar Town.
Mst.Mamoona Bibi accused had illicit relations with said Tariq goldsmith and to save him from the occurrence, she had falsely implicated myself in this occurrence claiming that I have committed Zina with her. In fact, I have, no such links with her. The P.Ws. Deposed falsely due to their political rivalry with myself and my pro group Zulfiqar of Khewaywali. They had not witnessed the occurrence and false version was introduced after due deliberation and consultation."
6. We have gone through the record of this case and have also perused the evidence produced by prosecution. The statements of the accused have also been read. We have also scanned relevant portions of the impugned judgment. We have heard ,learned counsel, for the appellants as well as learned Additional Prosecutor-General for the State.
7. Learned counsel for appellant Imran alias Mani while arguing the case, in support of his contention, has raised the following points:--
(i) This is a night time occurrence and there was no proper source of light under which the witnesses could see and identify the appellant/ accused.
(ii) The witnesses deposed that they have witnessed the occurrence through creeps of window from outside without any proper source of light.
(iii) Both the eye-witnesses are chance witnesses and they are not residents of the locality and they have entered appearance as chance witnesses.
(iv) The witnesses entered the place of occurrence from the house of someone else and the inmate of that house has not been produced.
(v) The second Investigating Officer never visited the place occurrence.
(vi) The sewing machine alleged to be the weapon of offence was not found stained with blood as mentioned in the recovery memo. Prepared by the Investigating Officer.
(vii) The sewing machine alleged to be the weapon of offence was available at the place of occurrence when the recovery memo was prepared. It is hardly believeable and even unnecessary, that its recovery has been shown on pointation 'that is why the learned trial court disbelieved.
(viii) At the time of recovery the sewing machine said to be lying on the shelf.
' On the other hand learned counsel for complainant formulated the following points:--
(i) Khalid Hussain, P.W.8 although does not reside there and admittedly does not own lying there but he used to cultivate there the land of somebody else.
(ii) Nawaz the neighbour from whose house the witnesses had entered the place of occurrence was not present at the time of occurrence. He appeared before .The police and according to Investigating Officer his statement was not recorded.
(iii) The F.I.R. Is promptly lodged.
(iv) All the accused are known to the witnesses and there is no chance of misidentity.
(v) The accused were caught red-handed.
(vi) The occurrence is, corroborated by Medico-legal Report?
(vii) The medical report corroborates the commission of sexual intercourse between Imran and Mst. Memoona.
(viii) There is no reason to falsely implicate the appellants.
(ix) There are minor discrepancies but not major contradictions.
(x) Both the appellants were caught red-handed while committing zina.
(xi) Both the appellants/accused never produced any witness before the Investigating Officer.
(xii) No witness from the locality appeared in defence of appellants which could negate the prosecution version.
(xiii) Mst. Memona admits the offence of zina although as zina-bil-jabr.
(xiv) Mst. Memoona alleged that the complainant was aged 54 years and had bad eye on her and it is not humanly possible..
(xv) The second Investigating Officer reported that she gave different version.
(xvi) Both the Investigation Officers had found both the accused guilty.
(xvii) The sewing machine has bars like nail which entered and injured victim when she was hit by the appellants/accused with the sewing machine.
(xviii) The appellant/accused Imran was not only fit to perform sexual intercourse but also fit to assault physically with the sewing machine.
(xix) The mutual enmity was due to political rivalry.
' The learned, Deputy Prosecutor-General contended the following points:--
(i) The occurrence took place around 4-30.a.m. And the statements etc. And other proceedings were started at 7-30.a.m.
(ii) P.Ws. 7 and 8 fully corroborate the version of F.I.R. And there is no enmity.
(iii) Khalid Hussain, P.W. Has proved his presence at the place of occurrence and cultivating the land of Nasrullah and no cross-question was put to him in this regard.
(iv) Both the accused were apprehended red-handed.
(v) The Inspector Manzoor Ahmed has deposed that both the accused were presented to him when he reached the place of occurrence and they were taken out from the baithak.
(vi) A question was put to Imran appellant during cross-examination of Nasrullah P.W. That no valuable was recovered at the time of occurrence.
(vii) The fact of zina has been reported in the F.I.R. And confirmed by the Chemical Examiner's report.
(viii)Dr. Jamal Nasir P.W.1 in para 10 of his report states that, Injuries Nos.2-7 can be caused by heavy object which can crash the bone.
' The medical evidence corroborates the ocular account.
(x) The sewing machine is reported to be blood-stained.
(xi) The version reported by the second Investigating Officer is different from the version reported by Investigating Officer who firstly investigated the case.
(xii) There is no previous enmity brought on record.
(xiii)The prosecution has fully proved its case and the appellant does not deserve any leniency.
8. That it is a case of double murder and, it has been observed from the evidence that the prosecution, inter alia, equipped with ocular evidence, the F.I.R. Was lodged promptly and name of the appellant/accused was specifically mentioned therein. That P.W.7 Nasrullah. Khan and P.W.8 Khalid Hussain are the eye-witnesses. In their' testimony these two witnesses P.W.7 and P.W.8 categorically stated that they have seen the accused/appellant with co-accused Mst.Mamoona in compromising position and they were naked having seen this they knocked the door but they did hot open it and only then by using the neighbouring house they entered into the house, and saw the appellant strangulating the neck of Ghulam Sakina with the help of co-accused Mamoona and on noise Muhammad Siddique came to rescue her but the appellant picked up a sewing machine lying there and hit it on the head of Muhammad Siddique. They further stated that they over powered both the accused persons and locked them in a room but both Muhammad Siddique and his wife Ghulam Sakina have died.. That the statements of both these witnesses, remained consistent with each other while narrating the occurrence and no major contradiction was seen therein nor in cross-examination the defence side could shatter their evidence in material particulars nor from the suggestions put to these two witnesses the defence side could be able to establish any plausible defence nor their presence at the time and place of occurrence could be adequately denied., In cross-examination, they mainly tried to put that the appellant/accused was implicated due to .Political rivalry and that being patient of T.B, he also remained in hospital and even was not able to commit the offence he has been charged with. The said suggestions seem to be of general nature and could not find any support from any reply of the P.Ws., nor defence side has ffroduced any evidence in this regard inasmuch as it is a well-settled principle that "who assert has to prove the same". The significant aspect of the case is that the appellant was arrested from the place of occurrence rather was caught redhandedly and, as such, the version of the appellant that he was arrested from Dera could not find legs to stand.
9. That the medical account has also been corroborative of the prosecution version as stated by the P. Ws. Such as the nature and position of the injuries which were sustained by the two deceased persons and causes of death as well as regarding the sexual intercourse with the co- accused Mamoona, specially the MLR of appellant accused nagates his version of being incapable of performing sexual inter course.
10. That P.W.5 Zafarullah son of Muhammad Khan's testimony has also remained in line with that of P.W.7 and P.W.8 in terms of timings of the material particulars. He also endorsed the presence of the complainant P.W.7 in hospital, till the post-mortem of the deceased persons inasmuch as according to this witness he received the information regarding the murder of both the deceased persons at 8-00 a.m. In the morning. He identified the dead bodies of the deceased persons and escorted the dead bodies at 9-30 a.m. To hospital. In cross-examination, nothing was said specifically in denial of the statement of this witness.
11. In view of what has been discussed above, the prosecution story seems to be confidence inspiring having remained consistent unshattered and probable. As such, the impugned judgment does not warrant interference of this Appellate Court as the prosecution succeeded to prove the case beyond reasonable doubt.
12. Consequently, Criminal Appeal No.164/L of 2004 filed by appellant/ accused Imran alias Mani is dismissed. The conviction and sentence awarded to him by the learned Additional Sessions Judge, Wazirabad vide his judgment dated 27-5- 2004 in Sessions Case No.38 of 2003 and Sessions Trial No.39 of 2003 are B maintained whereby he was convicted under section .302(b)/34, P.P.C. On two counts and sentenced to death with compensation of Rs.1,00,000 to be paid to the legal heirs each of the deceased persons and in each default of payment he will further undergo simple imprisonment for 6 months Imran alias Mani was ordered to be hanged by neck till his death. He was also convicted under section 10(2)- of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 and sentenced to 07 years' R.I with fine of Rs.10,000. (The learned trial Court has not mentioned the sentence in lieu of fine Rs.10,000). Therefore in case of default of payment of fine the convict will further undergo 06 months' R.T.
13. The Murder Reference No.8/L of 2005 is answered in the affirmative and his sentence of death is confirmed.
14. These are the reasons of our short order dated 24-1-2012.
15. Mst. Memoona, appellant in Criminal Appeal No. 165/L of 2004, who was on bail and warrants of arrest vide order dated 28-9-2011 passed by this Court, were issued but she did not appear on 22- 11-2011 and even today she is absent although notice was sent to her through concerned Police Station. Shahzad Abbas, A.S.-I., Police Station Ahmed Nagar has reported that the Police has verified that Mst.Memoona had come back in Pakistan vide Entry Status, arriving, through Flight No.ED-411 on 15-2-2011 vide Passport No.AN5791681 at Allama Iqbal International Airport, Lahore but her mother has reported that she does not know her whereabouts although her child is residing with her.
16. Perpetual warrants of arrest against Mst. Memoona be issued through the learned trial Court and the DPO concerned with the direction to arrest her immediately and ensure her presence before this Court. Office is directed to keep her case/file pending dormant/intact till her arrest. After her arrest, the case be fixed before the Court.
17. The learned trial court should also ensure necessary legal action against the sureties of Mst.
Memoona and report in this regard within fortnight through Additional Registrar of this Court.