' SHAHZADO SHAIKH, A.C.J.---By this common judgment, Jail Criminal Appeal No,282/I of 2004 filed by Qaisar Mehmood and Muhammad Shaban, Criminal Appeal No,342/L of 2004 filed by Qaiser Mehmood through his private counsel and Criminal Murder Reference No,17/I of 2004 submitted by learned trial Court are being disposed of. Both the appeals are directed against the judgment dated 28-9-2004 delivered by learned Additional Sessions Judge, Ferozewala, whereby the appellants were convicted under section 364-A of the Pakistan Penal Code and sentenced to life imprisonment. They were further convicted under section 302(h) of the Pakistan Penal Code and sentenced to, death. Both the accused were ordered to pay Rs,1,50,000 each as Diyat to legal heirs of the deceased if recovered. Both the accused were also convicted under section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) and sentenced to death each.
2. Brief facts of the case as set out in the crime report registered as F.I.R. No,190 dated 14-5-2003 under sections 302/201/34 of the Pakistan Penal Code and 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) with Police Station Muridke City, District Sheikhupura lodged by the complainant Hafeezullah P.W.3, are that on 13-5-2003 at 5-00 p.m., while he was cleaning Kulfa on his Rehri, Muhammad Tufail and Muhammad Asif were present near him whereas his daughter Rimsha aged 3-1/2 years was also playing around. Qaisar Mahmood and Muhammad Shaban, appellants emerged from the shoe factory located in front of his house and started fondling with his daughter Rimsha. They took the child into the said factory. After sometime, the complainant enquired about his daughter, on which, the accused stated that the child had already gone. The complainant party searched for the child throughout the night. In the early morning, he, Tufail and Asif saw Qaisar Mehmood and Shaban coming out of the factory with a Tora (bag) in their hands.
The accused threw the bag on seeing the complainant and fled away. They opened the bag only to find that the bag contained corpse of the missing child Rimsha. There were marks of violence on the neck, face and abdomen of the dead body. The complainant alleged that both the accused had done it to cover up their offence because the child was strangulated with a string after rape.
3. Investigation ensued as a consequence of registration of the crime report. Accused were found guilty during the investigation report under section 173 of the Code of Criminal Procedure was sent to the Court requiring the accused to face trial.
4. The learned trial Court framed charges against the accused on 21-11-2003 under sections 364-A, P.P.C., 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), 7(a) of Anti- Terrorism Act, 1997 read with section 34, P.P.C., 201/34, P.P.C. And under section 7(i) of Anti-Terrorism Act, 1997. The accused did not plead guilty and claimed trial.
5. The prosecution examined 13 witnesses and closed its case. The gist of their evidence is as follows:--
(i) P.W.1: Dr. Khalid Mehmood conducted potency tests of accused Muhammad Shahban and Qaiser Mehmood and found them fit to perform sexual intercourse.
(ii) P.W.2: Dr.Farida Sheraz conducted post mortem examination on the dead body of Rimsha Bibi deceased and found following injuries on her dead body:-
(1) A ligature mark 14 cm x 1 cm around the neck, front both sides of neck present, bearing a gap of 6 cm at the back of neck. Ligature mark is well defend and well-marked, easily recognizable, horizontal in nature on mid part of neck (2) A contusion 11 cm x 4 cm on front of abdomen on mid part.
(3) A contusion 10 cm x 4 cm on front of left thigh on lower part.
(4) Vulva as whole swollen, bruises on both thighs were present; blood staining on vulva area, both thighs and anal area were present.
' Vaginal parts are brutally damaged. Hymen freshly torn and still bleedings. Forchett torn measuring 1 cm x 1 cm x 2 cm another tear on right labis minera present 0.7 x 0.5 x 0.5 cm.
(5) Anal tear 1.5 cm x 1 cm all around the anus present into going deep still bleeding.
' In the opinion of this doctor, the death had occurred due to severe shock and haemorrhage.
Injuries Nos.1, 4 and 5 were sufficient to cause death.
' In the light of report of Chemical Examiner, according to which the swabs were stained with semen, the, doctor further opined that she was subjected to sexual assaults.
(iii) P.W.3: Hafeez Ullah is complainant of the case. He endorsed the contents of his complaint.
(iv) P.W.4: Muhammad Asif and P.W.5 Muhammad Tufail are the eye-witnesses of the occurrence.
They corroborated the version of the complainant. They had accompanied the complainant to the Police Station and identified the dead body of the deceased at the time of post mortem examination.
(v) P.W.6: Head Constable Ghulam Jafar Moharrar of the Police Station received a sealed parcel containing blood-stained earth for safe custody in Malkhana. On 20-5-2003, he handed over the said parcel to Constable Mukhtar for delivery in the office of Chemical Examiner, Lahore who delivered the same intact on the said date. On 16-5-2003, the said Investigating Officer also gave him Shalwar of Shaban accused for safe custody in Malkhana. On 20-5-2003, he handed over it to Constable Mukhtar who delivered the same in the office of Chemical Examiner, Lahore. He also delivered envelope containing swa bs to Constable Azam on 22-5-2003 for onward submission in the office of Chemical Examiner, Lahore, who deposited the same in the said office intact.
(vi) P.W.7: Constable Asghar Ali stated that at the time of occurrence, about 100/150 persons had gathered at the place of occurrence and were raising slogans that the accused should be given exemplary punishment.
(vii) P.W.8: Muhammad Tariq ASI stated that in his presence, Constable Mukhtar Ahmad brought the last worn clothes of the deceased and produced the same to the Investigating Officer and the latter took them into possession vide recovery memo Exh. P. 8/1.
(viii) P.W.9: Constable Mukhtar Ahmad escorted the dead body of the deceased along with Abdul Razzaq ASI to the hospital for post mortem examination. He also delivered two sealed parcels containing blood-stained earth and Shalwar. On 12-6-2003, he also received two sealed parcels containing shoe and Chaddar from the Moharrar which were delivered in the office of Chemical Examiner.
(ix) P.W.10: Constable Muhammad Azam Ali received two parcels from the Moharrar and deposited the same in the office of Chemical Examiner on 22-5-2003.
(x) P.W.11: Muhammad Ismail is a witness of extra judicial confession of commission of the offence/occurrence allegedly made by the accused before him and one Ramzan.
(xi) P.W.12: Ishtiaq Ahmad S.I. Is the author of the F.I.R.
(xii) P.W.13: Faqirullah S.I/Station House Officer conducted investigation. He reached the place of occurrence; recorded statement of the complainant Hafeezullah and sent the same to the Police Station for registration of the F.I.R. During investigation, he inspected the spot, prepared inquest report Exh.P.W.13/1 and injury statement Exh.P.W.13/2, handed over the dead body to Constable Mumtaz for escorting to the hospital, made application for post mortem, collected blood-stained earth from the place of occurrence, took into possession Nylon Torra P.4, prepared rough sketch of the place of recovery Exh.P.W.13/4, recorded statements of the witnesses, arrested both the accused on the same day. After post mortem examination, Constable Mukhtar gave him last worn clothes of the deceased which he took into possession vide recovery memo Exh.P.W.8/1 and recovered azarband P.1 at the pointation of the accused. He also got prepared site plan from the Draftsman and sent the recovered articles to Malkhana for safe custody. On 18-5-2003, on receiving information he also went at the place where a crowd, had gathered near Mujahid Hotel demanding death for the culprit and he recorded statements of the witnesses gathered there. On 28-5-2003, he sent incomplete report to the. Court. He also took into possession 15 cuttings of newspapers. On 22-6-2003, he submitted complete report in the Court. On 14-5-2003, complainant Hafeezullah received the dead body of the deceased.
6. After closure of prosecution evidence, statements of the accused were recorded under section 342 of the Code of Criminal Procedure. The accused pleaded innocence and claimed that they had been falsely implicated in this case. In reply .To question, "why this case against you and why the P.Ws. Deposed against you", the accused Shaban and Qaisar Memood replied that Anser is the real culprit, who is maternal cousin of Mian Shakeel a proprietor of the Shoe Factory. The said Anser and Ishtiaq Khan S.I. Live in the upper storey of the shoe factory of said Mian Shakeel. He alleged that Ishtiaq Khan S.I. Was a notorious Police officer and involved in nefarious activities. He enjoyed the patronage of Rana Ijaz Ahmad Khan Advisor to Chief Minister. He further stated that Faqirullah S.I/I.O. Remained a tool in the hands of Ishtiaq Ahmad S.I. He further alleged that both the counsel for the complainant had been engaged by Rana Ijaz Ahmad Khan to defend them. He further stated that all the witnesses were related inter se and interested and were motivated by the Police and the complainant to depose against them.
7. The accused did not opt to make statements under section 340(2), Code of Criminal Procedure.
However, Muhammad Aslam alias Baba Faqir appeared as D.W.1 and stated that one day after the occurrence, accused Shaban had been taken away from his house by Shakeel owner of the factory. Muhammad Sharif (also cited as D.W.1) appeared to state that Shaban was present in his house with broken collar bone. The date of visit to Shaban accused is not given.
8. After conclusion of trial, the learned trial Court convicted and sentenced the accused/appellant as stated in the opening paragraph of this judgment.
9. We have heard learned counsel for the accused and learned State counsel. The record of the case has been seen. The evidence and the statement of accused have been perused. Relevant portions of the impugned judgment have been scanned.
10. Malik Ghulam Hussain Awan, learned Counsel appearing on behalf of Qaisar Mehmood appellant has contended that the complainant had nominated the present accused by substituting the real culprits. There are many contradictions and discrepancies in the statements of the prosecution witnesses as P.W.4 Muhammad Asif stated that after the occurrence he went to his house on the fateful night whereas the P.W.5 Tufail stated that Muhammad Asif remained with them; Muhammad Asif P.W.4 stated that his house is situated at a distance of about 2 miles from the house of complainant whereas the complainant stated that house of Muhammad Asif is about 2/3 Killas away from his house; the complainant stated that his baithak is situated 5/6 feet away from the place where the accused threw the Torra and complainant stated that he along with P.Ws. Were sitting in the baithak while Asif and Tufail P.Ws. Stated that they were present at the places where the accused threw the Torra; there are contradictions as to who opened the Torra and finger prints were not taken, the prosecution failed to prove source of light at the place where the accused threw the Torra; Ismail P.W.11 stated that the accused confessed their crime before him and Ramzan whereas Ramzan did not appear as prosecution witness; P.W.13 Faqirullah SI/I0 stated that he arrested the accused at 12 O'clock whereas the complainant stated that the I.O. Arrested the accused at 6 O'clock. The learned Counsel further stated that recovery of shoe is doubtful because it is big in size and does not match with the foot of the deceased child. This is an unwitnessed occurrence and no direct evidence is available on the record to connect the appellants with the offence. The learned Counsel further stated that semen swabs were not sent to the Serologist for grouping. The shalwar of Qaiser Mehmood was not taken into possession for chemical analysis. Mian Shakil, owner of the shoe factory, was not joined in the investigation by the I.O. The learned Counsel further stated that the real culprit was Anser, who was cousin of Mian Shakil. He claimed that Qaisar was juvenile, which needed due consideration; Shakeel, owner of the shoe factory was not interrogated, and Ansar, who was involved by the defence, was not produced; and that the deceased victim had gone for purchase of toffees.
11. Mr. Zulfiqar Ali Khan Saifi, learned Counsel for appellant Muhammad Shaban has contended that it is unseen occurrence wherein semen grouping is necessary to ascertain the real culprit but the same was not done in this case; recovery of shoe, chadar and azarband is doubtful; lady doctor stated that it is not clear that the child was strangulated with azarband or string. He further stated that news with photographs of the alleged occurrence was published in the newspapers on 15-5- 2003 wherein the police showed azarband as the weapon of offence, which means the news and the photos were taken on 14-5-2003, while it is proved from the record that the alleged azarband was recovered from the accused on 16-5-2003, and there are contradictions as to the colour of the azarband. The learned Counsel argued that the requirements of section 103, Cr.P.C. Were not properly fulfilled by the I.O. At the time of recovery of shoe etc. As no independent person was cited as recovery witness; joint recovery was not admissible, and there were contradictions as to the place of recovery, e.g., as to whether kitchen was operational, and upper storey was occupied, etc., neither Shakeel nor chowkidar were called at the time of making recovery. He alleged that Shakeel's shoe factory was a den of criminals. The statement of complainant recorded under section 161, Cr.P.C. Is not available on the record however his supplementary statement is available in the police file which has no legal value because it is not primary evidence but secondary evidence. The learned counsel further argued that there are lapses and missing chains in the prosecution evidence. It is improbable that the accused took the child in the presence of her father for committing such heinous offence. Mens rea and actus reus are not proved on the part of appellants. Ramzan, withess of extra-judicial confession was given up by the prosecution whereas Muhammad Ismail, the other witness of extra-judicial confession was not such a respectable or notable person of the locality who was in a position to get pardon to the accused from the complainant party. The learned Counsel also pointed out contradictions regarding recovery of dead body of the child stating that the I.O. Stated that the alleged Torra was closed with a string while P.W.4 Asif stated that Torra was not tied with any string but it was only twisted at its top.
Furthermore the foot prints of the accused had been not secured from the place of occurrence as well as the finger prints of the accused on the Torra were not secured by the I.O. The learned counsel pointed out that relevant columns of the death report Exh.P.W.13/1 and other police record, were either not filled or partly filled, particularly time, wherever required to be indicated along with the date, identification features, etc., etc. Were not mentioned; the police had mishandled alleged articles of recovery for getting their forensic/chemical examination, and I.O. Seemed out of mind.
He stated that it had been mentioned that blood in the Torra had clotted/dried up, whereas Dr.'s report indicated that torn private parts of the baby were still bleeding, which amounts to contradiction. The learned ,counsel for the appellant contended that the stated place of throwing the Torra is not visible from the baithak of the complainant, and there are contradictions even to the exact point of throwing it. Collar bone of Shaban was injured, therefore it was not possible for him to help Qaisar carry the Torra to the point to throw it there. He further contended that there are discrepancies in the timings of presence of Asif, P.W.4, both in the beginning and after incident. He stated that shlawar of appellant Shaban was not taken into possession for forensic examination, and if it is claimed that it was, then it is not mentioned as to whether he was given any piece of cloth to wear, it was not for the appellants to demand grouping of blood and semen, therefore it was not demanded by Shaban; judicial confession was extracted under threat; complainant if tenant of Tufail. He stated that Abdur Razzaq, P.W. Was not produced. He stated that the learned trial Judge had wrongly convicted for abduction under section 364-A, although it was not a case of abduction and no force was alleged in removing the minor girl from the scene, furthermore conviction and sentence of death and diyat have been awarded together, which amounts to double jeopardy, although diyat could not be awarded, when the appellant was convicted with sentence of death under section 302(b), as Tazir.
12. Syed Saeed Ahmed Tirmzi, learned Counsel for appellants contended that it is unseen occurrence; there are material contradictions in the statements of prosecution witnesses; the offence was committed by some other person while the appellants were substituted, Shakil, owner of the factory, had not appeared as witness; the appellants had denied the allegations levelled against them.
13. On the other hand Mr. Azhar Hameed Chaudhry, learned Counsel for the complainant stated that the case was fully proved by the prosecution by producing evidence in the shape of medical evidence, statements of witnesses of extra-judicial confession, last seen evidence and the statements of the recovery witnesses. The accused took away the child (Rimsha) in the presence of the complainant and P.Ws., they were also seen by the complainant and the P.Ws. While throwing the Torra containing dead body of the deceased child. The prosecution has successfully proved its case beyond any shadow of doubt as no link is missing in the chain to bring home the guilt of the accused. The' plea taken by the accused in their statements under section 342, Cr.P.C.
Was not proved as the accused failed to bring on record any material evidence regarding their false implication. The accused also not proved any enmity with the complainant party. The learned Counsel stated that no father would substitute the real culprit in such type of heinous offence of zina, sodomy and murder of his own minor daughter. He further stated that the complainant has no other child except Rimsha. He further stated that it transpires from the medical evidence that the child was subjected to unnatural lust besides zina-bil-jabr and she was murdered in a brutal manner. He stated that potency tests of the accused were positive; according to medical and Radiologists reports Qaisar was adult, not juvenile, as he was declared to be above 18 years of age; no mala fide has been proved against the complainant by the appellants; prosecution witnesses have remained consistent all along, last seen evidence is unshaken, and appellants have not controverted taking the infant victim girl in the factory, nor they have contradicted presence of the complainant, the victim, and his Rehri at the place and point, which were all natural; the appellants were also seen by prosecution witnesses while throwing the Torra; when unshaken ocular evidence was available there. Was no need of grouping/matching of blood/semen, the gruesome occurrence is not denied, recovery of the dead body of the deceased victim infant is not denied; it was not necessary to call the owner of the shoe factory to be witness who was not present there.
14. Learned Counsel, appearing for the State, has adopted the arguments of learned Counsel for the complainant. He supported the impugned judgment and requested that the appeal may be dismissed.
15. We heard the learned Counsel appearing for the contending parties and perused the record with their assistance.
16. The prosecution has produced different types of evidence, including last seen evidence, recoveries, medical evidence and extrajudicial confession in order to prove its case. According to the F.I.R. Appellants Qaiser Mehmood and Muhammad Shaban had taken Rimsha to the factory when she was playing nearby her father, the complainant; on realizing after some time that baby Rimsha was not returned, the complainant in the first instance inquired from the appellants about her daughter, as they (Qaiser Mehmood and Muhammad Shaban) had taken her with them in the factory, but they told him that she had gone back. The complainant along with Muhammad Asif and Muhammad Tufail P.Ws had been searching for her the whole night and at about 4-00 a.m.
They saw that accused Qaiser Mehmood and Shaban came out of the factory with a Torra who on seeing them threw the Tora and ran away and on opening the Torra they found dead body of Rimsha. Thereafter, the complainant immediately lodged the F.I.R. On 14-5-2003 wherein he nominated accused Qaiser Mehmood and Shahan and the police arrested the accused, the same day.
17. Recoveries of azarband P1, chadar P2 and shoe P3 were effected on the disclosure of the accused. All the articles were sent to the office of Chemical Examiner and were found stained with human blood.
18. Postmortem examination on the dead body of Rimsah deceased was conducted by Lady Dr. Farida Sheraz P.W.2 on 14-5-2003 and she observed five injuries on the dead body and opined that all injuries collectively and injuries Nos.1, 4 and 5 were sufficient a cause death; the death occurred due to severe shock and haemorrhage, and asphyxia leading to cardiac and respiratory failure.
She also observed that vaginal parts were brutally damaged, hymen freshly torn and was bleeding, anal tear 1.5 cm x 1 cm around the anus was present going deep and was bleeding.
Report of Chemical Examiner Exh.PG is also positive wherein it was stated that the swabs were stained with semen. Chemical Examiner's report on the articles of recovery also indicated that these were stained with human blood. The lady doctor also opined that the child (Rimsha) was subjected to sexual intercourse.
19. Muhammad Ismaeel P.W.11 categorically stated in his statement that on 14-5-2003 at 6-00 a.m.
He along with Ramzan (given up P.W.) met accused Qaiser Mehmood and Shaban in the shoe factory where both the accused made confession before them regarding commission of rape with Rimsha and her murder by strangulating. Extra-judicial confession though is a week type of evidence yet it could be considered as .a corroborative piece of evidence in the presence of other material evidence available on the record in the shape of last seen evidence, medical evidence, etc.
20. It is quite clear from the record that the accused had taken away Rimsha in the factory and they were seen while throwing Tora containing dead body of Rimsha by the complainant as well as Muhammad Asif and Muhammad Tufail. F.I.R. Was lodged promptly on the same day i,e, 14-5-2003 wherein the complainant nominated both the accused. The accused made confession before Muhammad Ismail P. W.11 and Ramzan. The accused were arrested by the I.O. On 14-5-2003 and on their disclosure the I.O. Recovered azarband which was used in the murder of Rimsha along with Chadar and a shoe. The I.O. Took the same into possession in the presence of the witnesses. The shoe, although large size, had to be taken into possession, because it was found blood-stained, as confirmed by chemical report, from the place.Of offence, along with other blood-stained articles like chaddar, etc. The contention of the learned Counsel for the appellants that the I.O. Had not fulfilled the requirements of section 103, Cr.P.C., and no independent witnesses were associated, is of no value because in such cases no other person except blood relations step forward to discharge the duty of being a witness. Chadar and shoe were found stained with human blood vide report of Chemical Examiner Exh.PH. According to report of Chemical Examiner Exh.PD, the shalwar of accused Shaban was found stained with semen. All these things are sufficient to connect the appellants with the offences committed by the appellants as they had not produced any cogent evidence regarding their innocence. They took up the plea of substitution of accused in this case and alleged that one Anser had committed this offence but they failed to bring on record any material evidence to show their wrong involvement in this case, or produce any evidence in support of defence plea that Anser was the culprit. Furthermore, even allusion that the victim had gone to get some toffees, was neither substantiated nor proved. All this shows that the defence somehow, desperately, wanted to shift the burden to somewhere else. Although it was an unseen occurrence yet the prosecution has proved its case through circumstantial evidence by producing last seen evidence, extra-judicial confession coupled with medical evidence in line with each B other and no link is missing in the chain. Furthermore the recoveries effected on the disclosures of the accused also connected them with the crime. There is no conflict between the medical evidence and the ocular account and the same are fully corroborated with each other. There was no room for prosecution for false implication of the appellants and fabricate the case against the appellants. The contradictions pointed out by the learned Counsel for the appellants are generally trivial and technical, mostly pertaining to inefficiency of concerned police officials, and not mainly of the complainant or the main prosecution witnesses, who have stood the long ordeal of cross- examination totally unshaken with their confidence-inspiring natural accounts, These trivialities on the part of official incompetence and inaptitude have no mass or momentum to brush aside the prosecution evidence of poor illiterate father and naturally suffering relations of an innocent infant girl. The witnesses were cross-examined at length but their veracity could not be shattered. The learned Counsel for the appellants have not been able to create any dent on the prosecution evidence on this account. Furthermore, trivial technical objections revolve around peripheries, e.g., whether Torra was tied with string or it was only twisted at its top, instead of concentrating on core ocular evidence of taking the victim infant inside the factory by the appellants, occurrence itself and recovery of the brutally done to death body of the tender baby.
21. Denial of mens rea and actus reus, by the learned counsel for appellant Shaban, needs examination. Mens rea refers to criminal intent. Intent refers to state of mind accompanying an act, especially a forbidden act. This may necessitate examination of motive also. Motive is the inducement to do some act, whereas in contradistinction, intent is the mental resolution or determination to do it; i,e,, when the intent to do an act becomes so strong even to violate the law, motive becomes immaterial. Therefore, mens rea, i,e,, criminal intent or the intent to commit an actus reus may actualize or realize it without even justification, excuse, or other defence, as an impulse.
22. Mens Rea [literally, guilty mind], is a culpable mental state, especially when it involves intent or knowledge of wrongdoing, forming an element of a criminal offence. Every criminal act in law has three stages:-- - preparation, - taking steps for its commission, and - causative effects i,e,, consummation/commission of criminal act.
' Above all criminal intent/mens rea was the most essential and integral part of a crime. In every crime it was a matter of high importance that intent and act must, both, concur to constitute crime. An intention though could be inferred from the act of an accused, but manifestations must provide clear link therewith. [See 2005 PCr.LJ 22] Principles are that conduct of the accused during the whole transaction and his presence at the spot should be bona fide, faultless and devoid of elements of mens rea or actus reus;. [2009 SCM R 929] ' It may also be noted that "criminal intent" or "guilty mind" creates responsibility for the crime.
' Actus reus, (Latin "guilty act", or "guilty deedl is a `wrongful act that makes up the physical action of a crime; a wrongful deed that comprises physical components of a crime; generally it must be coupled with mens rea to establish criminal liability; a forbidden act, i)
' From above it follows that all crimes (wrongful deed, or guilty act, or deed of crime), have two elements:-- - the intent to commit the act (mens rea), - performing the act (actus reus).
' Similarly an attempt to commit a criminal act, also, has two necessary elements:-- - Mens rea, followed by actus reus.
23. On careful analysis it would be seen that action or conduct which is a constituent element of a crime, as opposed to the mental state of the accused, e.g., even failure to prevent death may constitute an actus reus of manslaughter.
24. The actus reus for kidnapping would include the taking of or taking over unlawful control over child/infant's person or to remove him/her from guardianship. (Also see example in Black's Dictionary of Law)
25. Now we turn to the appellants whose nefarious intent and act fully demonstrate the above legal position. The accused were the most immediate neighbours, just opposite the house and sale point of Rehri of the complainant, where he used to sale kulfa and according to him the infant baby girl was already wilfully familiarized by the accused so that the infant victim was already and sufficiently acquainted with them. Mens Rea is quite apparent in such behavior of the accused which became manifest in the Actus Reus or the actual commission of acts of their offences.
26. Argumentation of the defence, all along, about trial discrepancies in distances, timings, etc. Of some locations, events, witnesses, etc., rather go to generally prove the occurrence, the recovery of the dead body and presence of the witnesses, etc..
27. Last seen occasion and place of the victim, recovery of the dead body and the manner in which it was recovered, prove that the offence was committed in the very adjacent place, which singles out the shoe factory as the singular point among all other places which were residential, as the place of occurrence. This is further inaptly supported in the assertion of the defence that the factory was the den of criminals, where appellants were also working/living a bachelor's life.
28. No doubt semen swa bs and blood samples were not sent for grouping, but for the sake of argument, the defence also, did not demand it. But to the extent of Medical and Chemical reports of the articles, along with circumstantial evidence, supported the prosecution.
29. Objection about not taking finger and foot prints of the accused is also not material, when other relevant incriminating evidence has been sufficiently brought on record.
30. The point that the blood in the Torra had clotted/dried up, whereas Dr.'s report indicated that torn private parts of the baby were still bleeding, does not amount to contradiction, because the blood which had flown or oozed out would dry up, whereas that which was still inside the vessels within the body would remain in liquid form; comparatively for a longer time
31. Shaban's plea that he had collar bone injury, is totally a false and fabricated defence attempt.
Fracture or bone injury, if it was so serious, at such a location would require immobilization plastering, but he neither sought any orthopedic treatment, nor reported during Medical Examination, nor subsequently, during detention complained of pain, which would have been very painful in the bone, nor demanded such treatment.
32. The learned counsel for appellant Shaban, rightly pointed out that the learned trial Judge had wrongly mentioned "abduction" under section 364-A, although it was not a case of abduction, but a case of kidnapping, being of an infant (child).
33. The learned counsel for appellant further rightly pointed out that conviction and sentence of death and diyat have been awarded together, which amounts to double jeopardy, although diyat could not be awarded who the appellant was convicted with sentence of death under section 302(b), as Tazir.
34. The accused at no point have been able to deny that they had not taken the infant baby girl in the factory. Then, it was their duty to safely return and ensure the handing over of the infant, whose intellect, understanding, and mind were also in infancy and totally undeveloped. They didn't show any concern even on asking by unfortunate father of that only child, the first and still the last.
35. The case is fully proved against the appellants from the facts and circumstances of the case.
The P.Ws. Deposed against both the accused jointly and did not single out anyone of them.
36. For what has been discussed above, we find no merits in thest appeals i,e, Jail Criminal Appeal No,282/I of 2004 jointly filed by Qaiser Mehmood and Muhammad Shaban and Criminal Appeal No,342/I of 2004 separately filed by Qaiser Mehmood through his Counsel are dismissed and conviction and sentences awarded to the appellants by the learned, Additional Sessions Judge, Ferozewala, District Sheikhupura vide impugned judgment dated 28-9-2004 under section 364-A, P:P.C. To life imprisonment each, under section 302(b), P.P.C. To death sentence, each, and under section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance. VII of 1979 to death sentence each are maintained.
37. The above judgment is modified to the extent that instead of direction of pay Diyat of Rs, 1,50,000 each to the legal heirs of deceased, the appellants are directed to pay compensation of Rs,1,50,000/00, each, under section 544-A, Cr.P.C. To the legal heirs of the deceased, if recovered.
38. The Murder Reference No,17/I of 2004 is confirmed and answered in affirmative.
39. These are reasons of our short order dated 20-9-2011.