Ch. Abdul Aziz, J. Khalid Hameed (appellant), involved in case FIR No.685/2014 dated 13.11.2014 registered under sections 302,376 & 364-A PPC at Police Station Pir Wadhai, Rawalpindi, was tried by learned Additional Sessions Judge, Rawalpindi. The learned trial court vide judgment dated 27.07. 2015 proceeded to convict and sentence the appellant in the following terms:- Under section 302 (b) PPC to suffer death sentence. He was also directed to pay compensation of Rs.500,000/- under section 544-A, Cr.P.C. to the legal heirs of Zainab Bibi (deceased) and in default whereof to undergo SI for six months.
Under section 364-A PPC to suffer death sentence as Ta'zir. Under section 376 PPC to suffer death sentence as Ta'zir.
Challenging his conviction and sentence, Khalid Hameed (appellant) filed Criminal Appeal No.328 of 2015 , whereas trial court sent reference under section 374, Cr.P.C. which was numbered as Murder Reference No.26 of 2015 for the confirmation or otherwise of death sentence awarded to Khalid Hameed (convict). Both these matters are being disposed of through this single judgment.
2. Briefly stated the case of the prosecution as narrated by Munir Khan complaina nt (PW.4) in FIR (Exh.PJ/2) is to the effect that he along with his family members was residing at Loharan Street Near Walaytan Mosque and was a government servant; that he had two daughters, namely , Iffat Bibi and Zainab Bibi and a son Kabeer Khan; that on 11.11.2014 at about 3:00 p.m. his daughter Zainab Bibi aged about 6/7 years who was a student of 1 class went to a nearby shop for purchasing something to eat; that after the lapse of consider able time, when Zainab Bibi did not return, he got curious and went in the locality for search of his daughter and asked the residents about her whereabouts; that when he found no traces, he went to the police station and informed regarding missing of his daughter; that he also kept on searching his daughter by himself; that on 13.11.2014 at about 1:00 a.m. he along with Malik Dilshad Khan and Jahangir Khan went near Mobilink Franchise in the search of his daughter where theyst saw Khalid Hameed (appellant) going towards the graveyard having a sack on his shoulder and from search of which dead body of Zainab Bibi was recovered.
3. The law was set into motion on the written application (Exh.PJ) of Munir Khan complainant (PW.4) presented before Mumtaz SI (PW.15) during his visit to the spot. Muhammad Mumtaz SI sent Exh.PJ to the police station through Muhammad Sajjad Constable for the registration of formal F.I.R. and arrested Khalid Hameed (appellant) from the said place. The personal search of Khalid Hameed (appellant) led to the recovery of wallet (P.3) containing Rs.250/-, CNIC (P.7), lock (P.8) along with key (P.9), mobile (P.10) which were taken into possession vide memo Exh.PQ. He also secured sack (P.11) along with rope (P.12) through seizure memo Exh.PR. He also prepared injury statement Exh.PF , inquest report Exh.PG and sent the dead body to the mortuary for the postmortem examination through Mehmood Ahmad Constable. Khalid Hameed at the time of arrest made disclosure and in pursuance thereof led the police party to the baithak where he committed rape with Zainab Bibi and from the said place got recovered a pair of shoes of Zainab Bibi and her shawl/chaddar which were taken into possession vide memo Exh.PS. From that place, Muhammad Mumtaz SI also took into possession two stains with semen pieces of cloth, a vest and a dhoti vide memo Exh.PU. He also secured small pillow and hair of deceased Zainab Bibi through recovery memo Exh.PV as well as blood through cotton vide memo Exh.PW. He obtained docket by filing application to CPO for getting conducted the test of DNA of the accused. Muhammad Mumtaz SI also arrested Naik Muhammad father of Khalid Hameed (appellant) on 19.11.2014 but during investigation he was not found involved in this case and resultantly discharge report to his extent was prepared. He after declaring Khalid Hameed guilty in his investigation got submitted report under section 173, Cr.P.C. against him.
4. The prosecution in order to prove its case against the appellant fifteen PWs including Munir Khan complainant (PW.4) and Dilshad Khan (PW.7) who narrated about the recovery of dead body from the possession of the appellant, Muhammad Younas (PW.11) and Pervaiz Gul (PW.13) who deposed about the last seen evidence Dr. Narjis Zaidi (PW.3) and Dr. Azhar Farooq (PW.7) who furnished the medical evidence and Muhammad Mumtaz SI (PW .15) who investigated the matter . The remaining PWs more or less were formal in nature.
5. Lady doctor Narjis Zaidi (PW.3) on 13.11.2014 at about 3:00 a.m. conducted the postmortem examination of Zainab Bibi (deceased) and gave the following observations:- "A six year old young girl with fair complexion approximately three in height, wearing frak with flower print and black coloured tight. Right eye was semi open but left eye was closed and conjuctive contused, left face contused, forehead contused and oedematous. Nose and mouth clear having no ear bubble and blood. Postmortem lividity was well marked on posterior aspect of the body . On perennial examination hymen was ruptured introitious white and bleeding was seen around vagina and staining of inner thighs. Vaginal swabs taken. Strangulation marks present on right side of neck half inch long 5 cm below right lope of right ear. Mark on left side of neck 5 cm long 6 cm below lobe of left ear . Mark was boat shape.
DESCRIPTION OF INJURIES (1). On neck half in inch mark on right side of neck 5 cm below lobe of right ear .
(2). 5 cm mark on left side of neck 6 cm below of lobe of left ear .
On dissection hyoid bone was looking intact. Four vagina swabs were taken for semen analysis and DNA testing.
On dissection hyoid bone was looking intact.
Four vaginal swabs were taken for semen analysis and DNA testing. All the other organs were healthy and intact.
Specimen sent for expert opinion was for chemical examination, Histopathologica l examination and DNA testing.
Samples were of small intestine, large intestines, liver, spleen, kidney , heart and lungs for detection of poison.
Hyoid bone and trachea for Histopathological examination and four vaginal swabs for semen analysis, blood group and DNA testing.
OPINION "After completion of postmortem examination, I was of the opinion that there was clear cut evidence of sexually assault and strangulation. Final opinion would be given after reports from Forensic Science Agency Lahore. In case the poison is not detected in the viscera of the deceased, the cause of death in my opinion was asphyxia by strangulation coupled with the sexual assault."
Dr. Azhar Farooq (PW.7) on 13.11.2014 medically examined Khalid Hameed (appellant) and found him potent to perform sexual act.
6. After the conclusion of prosecution evidence, the learned trial court examined Khalid Hameed (appellant) under section 342, Cr.P.C. who in response to question "why this case against you and why the PWs deposed against you" made the following reply:- "A false case has been registered against me. I was made a scapegoat in this case. I have nothing to do with the alleged offence. The PWs are interested and related to the complainant party."
Neither appellant opted to appear as witness under section 340 (2) of Cr.P.C. nor produced any evidence in his defence. On the conclusion of trial, the appellant was convicted and sentenced, as mentioned above, hence, the instant appeal and murder reference.
7. It is contended on behalf of appellant that the case in hand is arising out of crime report which was registered with an unexplained delay of two days; that admittedly , the murder occurrence remained un-witnessed and case of prosecution is comprising upon circumstantial evidence; that the main component of such incriminating circumstances is the evidence of last seen and recovery of dead body from the possession of appellant; that so far as evidence of last seen which was furnis hed by PW.11 Muhammad Younas and PW.13 Pervaiz Gul is concerned, it from face of it is dubious in nature; that both the witnesses of last seen remained silent till the registration of FIR, which casts reasonable doubt about the truth of their claim; that PW.13 Pervaiz Gul while narrating the episode of last seen neither took the name of deceas ed nor gave her physical or facial feature s; that the medical evidence put forth during trial is also not supporting the case of prosecution as it runs contrary to the accusation; that even the DNA report also negates the charge of rape as no seminal material taken from the vaginal swabs of deceased matched with the profile of appellant; that so far as, recovery of dead body from the possession of appellant is concerned, no independent witness in its support was produced by prosecutio n, thus such charge remained unproved and that though reasonable doubt emerges from the plain reading of prosecution case, however , its benefit was not extended to the appellant. With these submissions, it was urged that the conviction awarded to the appellant is not sustainable.
8. On the other hand, learned Deputy Prosecutor General assisted by learned counsel for the complainant strongly controverted the arguments advanced on behalf of the appellant and submitted that though the FIR was registered with the delay of two days, however , the information regarding the missing of deceased Zainab was provided to police on the very day of occurrence; that the appellant was apprehended along with the dead body of deceased which is sufficient proof of his guilt; that on the disclosure and pointation of appel lant, blood stains and clothes of Zainab Bibi deceased were recovered from his residential room; that during DNA examination it proved beyond hilt that blood stains secured from the room of appellant matched with the DNA profile of deceased; that through cogent and confidence inspiring evidence, the appellant was linked with the room from where blood stains of deceased were collected; that the evide nce of last seen brought on record through Muhammad Younas and Pervaiz Gul itself is sufficient to connect the appellant with the commission of crime; that the belongings of deceased recovered at the instance of appellant provide sufficient corroboration to the case of prosecution; that it emerges from the medical evidence furnished by Lady Doctor Narjis Zaidi that deceased was raped and strangulated to death and such aspect can be taken as sufficient supporting circumstance and that since the guilt of appellant stands proved from the prosecution evidence, hence, the judgment of conviction passed by the trial court needs no interference in appeal.
9. Arguments heard. Record perused.
10. The case of prosecution, so to speak , primarily hinges upon circumstantial evidence which is in the nature of last seen evidence furnished by Muhamm ad Younas and Pervaiz Gul (PW.11 & PW.13), the recovery of dead body from the constructive possession of appellant witnessed by Munir Khan and Dilshad Khan (PW.4 & PW.9), belongings of deceased recovered on the pointation of appellant and the medical evidence.
11. A wade through the record reveals that the case in hand is arising out of an incident in which a little girl, namely , Zainab (aged about 6/7 years) was raped and strangulated to death after abduction. The little angel left the house of her father , which was nothing less than a castle for her on 11.11.2014 at about 3:00 p.m. and went missing subsequent thereto. Though it is obsessively argued that FIR (Exh.PJ/2) suffers from an unexplained delay of two days, however , the scrutiny of record reveals that this argument did not find support from record. In fact, initially the ill-fated father , namely , Munir Khan (PW.4) made personal efforts to locate his missing daughter but upon failure he approached Station House Officer Pir Wadai Rawalpindi on 12.11.2014 through application (Exh.PH) which was recorded in Station Diary through entry No.33. Even otherwise, in cases of abduction, such delay is apt to happen due to indif ferent attitude of police and over optimistic approach of the families.
12. It alludes from in-depth review of the record that the main occurrence of rape and murder remained un- witnessed. The prosecution case is main ly resting upon circumstantial evidence. One of the components of such incriminating circumstances is the evidence of last seen narrated by Muhammad Younas and Pervaiz Gul (PW.11 & PW.13). Before proceeding any further , it appears to be in fitness of things to see that what in law means evidence of last seen. Such evidence stands for an event in which the slain person is seen last time alive in the company of an accused. Though the evidence of last seen in itself is generally regarded as a weak type in nature but there is no legal impediment to make it basis for awarding conviction, if it is corrobora ted from some other source of unimpeachable character . The evidence of last seen qualifies for acceptance if it fits into the criteria of proximity of time and distance, according to which the time and distance between the event of last seen and death of deceased must not be too long. The lesser is the duration and distance between the event of last seen and homicidal death of the victim, stronger is such evidence. The logic behind evaluating the evidence of last seen on the touchstone of proximity of time and distance lies behind the theory that afflux of longer duration and distance between the two events gives rise to the hypotheses that after having been seen in the company of accused, the deceased might have parted his way and joined the comp any of some other . In support of our such view, we consider it appropriate to refer the view of Hon'ble Supreme Court of Pakistan in case reported as Rehmat alias Rhaman alias Waryam alias Badshah v . The State (PLD 1977 SC 515 ) which is as under:- "On a balance of the decided cases, it appears that the circumstances of the deceased having been last seen in the company of the accused is not by itself sufficient to sustain the charge of murder. Further evidence is required to link the accused with the murder of his companion. Such as incriminating recoveries at the instance of accused, a strong motive or the proximity of the time when they were last seen together and the time when the deceased was killed. Only then will the accused be called upon to give an explanation of the demise of the person who was last seen alive in his company".
The afore-mentioned view was further affirmed by the Hon'ble Apex Court in a recently pronounced judgment reported as Muhammad Abid v. The State and another (PLD 2018 Supreme Court 813).
In the wake of above discussion, we consider it appropriate to embark upon the testimony of Pervaiz Gul (PW.13), who in no manner was related to the deceased and instead was a pupil of Khalid Hameed (appellant). It is noteworthy that even the deceased has not denied his afore-mentioned rapport with Pervaiz Gul (PW.13) and even went on to admit it while responding to question No.17 in his examination under section 342, Cr.P.C. For reference sake, the reply is being reproduced which is as under:- "I am Ustad of Pervaiz Gul but he did not arrange Baithak for me."
It is further observed that according to the deposition of Pervaiz Gul (PW.13) he went to the place of abode of appellant on 12.11.2014 at about 9:00 p.m. and saw him in the company of a six years old girl. Admittedly , he neither mentioned the name of Zainab (deceased) nor gave her physical or facial features in his examination-in- chief. However , Pervaiz Gul (PW.13) identified photograph (P.13) to be of Zainab (deceased) when confronted with it during cross-examination. Similarly, Muhammad Younas (PW.11) who was having no blood relation with the deceased but hailed from the same vicinity also appeared in the dock with the claim of having witnessed Zainab (deceased) in the company of appellant on 11.11.2014 at about 5:00 p.m. and stood firm with this stance. After subjecting the testimony of both the witnesses of last seen to meticulous examination, we have not come across any circumstance from which it may even remotely insinuate that the two witnesses had any axe to grind with the appellant through falsely implicating him in the case. In reference to the principle of proximity of time and distance, it is noticed that on the one hand, Zainab (deceased) was seen by Pervaiz Gul (PW.13) in the room of Khalid Hameed (convict) at about 9:00 p.m. of 12.11.2014 and on other hand it is observed that her corpse arrived in Holy Family Hospital Rawalpindi on 13.11.2014 at about 3:00 a.m. In such state of affair, we have all the good reasons to believe that shortly after having been seen in the company of appellant, Zainab took her last breath. It is of immense importance to mention here that appellant was having his place of abode within the territorial jurisdiction of Police Station Peer Wadai. The appellant was spotted by the PWs on the night falling amidst 12 & 13 November, 2014 in a locality situated in the area of same police station. From above referred facts, it can safely and legitimately be concluded that the evidence of last seen is in consonance with the requirements of proximity of time and distance.
13. Though we have clarity of mind in holding that the deposition of Muhammad Younas and Pervaiz Gul (PW.11 & PW.13) rings true, however , as an abundant caution have peeped through the record to look for further corroboration. It is noticed that the corpse of Zainab was recovered in a manner which leans every prudent legal mind towards the guilt of appellant. It is evincible from file that Khalid Hameed (appellant) was nabbed by Munir Khan and Dilshad (PW.4 & PW.9) in the thick of an event wherein he was carrying the corpse of Zainab placed in a sack upon his shoulders. Having critically gone through the evidence of both witnesses, we have not been able to come across even an iota of suspicion to shatter afore-mentioned claim of witnesses. It is also evident from the police proceedings mentioned at the bottom of crime report (Exh.PJ/2) as well as from the statement of Investigating Officer Muhammad Mumtaz SI (PW.15) that upon arrival of police at crime scene, the appellant was found detained by Munir Khan (PW.4) and two others along with dead body of Zainab in a sack. Since the recovery of dead body from the possession of appellant is forming part of a transaction in which earlier the deceased was abducted, raped and then strangulated to death, hence is a relevant fact as res gestae. The expression "res gestae" in Black's Law Dictionary Tenth Edition is defined in following manner:- "The res gestae embraces not only the actual facts of the transaction and the circumstances surrounding it, but the matters immediately antecedent to having a direct casual connection with it, as well as acts immediately following it and so closely connected with it as to form in reality a part of the occurrence. "
The concept of res gestae also stands embodies in Article 19 of Qanun-e-Shahadat Order , 1984 which for reference sake is reproduced hereunder:- "Relevancy of facts forming part of same transaction. Facts which though not in issue are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different time and places."
In order to treat a circumstance admissible and relevant as res gestae , the prosecution is to demonstrate through some legally admissible evidence that it was connected with the fact in issue so closely as to form part of one transaction. Likewise, the fact in order to attain admissibility as res gestae should not have occurred with afflux of such time so as to give rise to the hypotheses of being part of a different transaction rather it must be contemporaneous with the incident in issue. The term "res gestae " and Article 19 of Qanun-e Shahadat Order , 1984 came under discussion before the Hon'ble Supreme Court of Pakistan in case reported as Shabbir Hussain alias Sukku v . The State (PLD 2003 Supreme Court 368) and met with following observations:- "In order to attract the application of Article 19 of Qanun-e Shahdat it is important to bear in mind that the facts, which are connected with the fact in issue as "part of the transaction" under investigation are admissible as relevant facts. In order to apply the said rule the point for decision will always be whether the said facts do form part or are too remote to be considered really part of the transaction before the court."
On the benchmark of above discussion, we have clarity of mind that the circumstance of appellant having been found in possession of Zainb' s corpse is closely connected with the charge of murder and rape, hence can legitimately be considered as an admissible incriminating circumstance, relevant to fact in issue.
14. This is also an integral part of the prosecution case that immediately after his arrest Khalid Hameed (appellant) in pursuance of a disclosure, led the police to his residential room and got recovered shoes (P.3/1-2) and shawl/Chadar (P.4) belonging to deceased. From the floor of same room, blood through cotton was secured by Muhammad Mumtaz SI (PW.15) vide recovery memo (Exh.PW), which as per DNA report (Exh.PZ) was proved to be of deceased Zainab. This circumstance goes long way in proving that Zainab met her homicidal death in the room where none other than the appellant was having his abode. Though it is vociferously argued that since the belongings of deceased and blood from the floor were secured without associating any resident of the vicinity, thus being in violation of section 103, Cr.P.C. no explicit reliance can be placed thereupon. Since such argument runs contrary to the mandate of Article 40 of Qanun-e-Shahadat Order , 1984, hence, holds no ground. It will not be out of context to mention here that Articles 38 & 39 of Qanun -e-Shahadat Order , 1984 make inadmissible the confession made before a police officer or in his custody . However , Article 40 of the Order ibid, is an exception to such rule and it is postulated therein that if a fact is discovered in consequence of information received from an accused, may he be in police custody , it can be brought on record. The word "discovery" is to be construed in literal and restricted sense and means the lifting of veil from a fact relevant to the issue in question which must not be in conscious knowledge of any other person. It is, in these circum stances, that the associating of two residents of the locality as required under section 103, Cr.P.C., can be dispensed with. Recoveries effected and facts discovered under Article 40 of Qanun-e-Shahadat Order , 1984 gain credence if witnessed by any two persons, may they be even from police. In the aftermath of above discussion recoveries in this case are found to have been effected on the disclosure and pointing out of the appellant from a place in his possession, hence are credible in nature. In support of our view, we are guided by chain of authorities from the jurisdiction of Hon'ble Supreme Court of Pakistan reported as Hidayatullah and 7 others v. The State and others (1994 P Cr.LJ 20), Gul Muhammad v. The State (2011 SCMR 670), Mst. Askar Jan and others v. Muhammad Daud and others (2010 SCMR 1604 ), Sh. Muhammad Amjad v. The State (2004 SCJ 33). The observation of Hon'ble Supreme Court of Pakistan expressed in the case of Sh. Muhammad Amjad (supra ) for reference sake is produced as under:- "Further , it is noted that as per Article 40, corresponding to section 27 of the Evidence Act, when any fact is revealed in consequence of information received from any accused in custody of a police officer, such information whether it amounts to a confession or not as it relates directly to the fact thereby discovered, may be proved. The information supplied by the appellant, under Article 40 ibid, relating to incriminatory articles is admissible. "
15. Since the belongings of deceased and her blood was recovered from a room , hence its nexus is essentially required to be established with the appellant. For this purpose, prosecution produced Mst.Hanifan Bibi (PW.12), the owner of house which comprises upon the room in question. In the absence of any enmity with appellant, Hanifan Bibi (PW.12) deposed to have rented out the room/Baithak to Khalid Hameed (appellant) on monthly rent of Rs.2700/-. It is intriguing to mention here that during his examination under section 342, Cr.P.C., appellant was asked about the obtaining of said room on rent from Hanifan Bibi to which he responded in following words:- "I was residing in a rented Baithak of Mst. Hanifan Bibi but I had not obtained it through Pervaiz Gul PW ."
It can safely be derived from above that on one end this is the stance of prosecution that the room in question was under the exclusive possession of Khalid Hameed (appellant) and on other end there is an admission on his behalf in this regard. Such circumstance, besides providing strong corroboration to the evidence of last seen, goes long way in establishing that Zainab Bibi met her death in the room which was under occupation of appellant.
16. We have also attended to the medical evidence brought on record through Dr. Narjis Zaidi (PW.3) who conducted autopsy of Zainab Bibi (deceased) on 13.11.2014 at 4:00 a.m. Besides explaining the cause of death as asphyxia by strangulation, she described the duration between the death and postmortem as approximately two to three hours. The most painful aspect which surfaced from the deposition of Dr. Narjis Zaidi (PW.3) is to the effect that before strangulating Zainab to death, she was subjected to rape, an act bereft of any morality and at the ebb of extreme inhumanity . Though during DNA examination, seminal material taken from the vaginal swabs and clothes of Zainab Bibi did not match with the appellant, however it cannot be resolved adve rsely to the case of prosecution.
While holding so, we have in our minds that the appellant must have resorted to safe sex by adopting some precautionary measures for not leaving behind stains of his semen. Even otherwise, since the cases of sexually ravishing little kids have increased to many folds in the recent past, hence, the courts are required to have resort to more pragmatic, dynamic and realistic approach while catering with them and must not build the superstructure of acquittal on artificially stretched concept of doubt.
17. The epitome of what has been discussed above is that prosecution successfully proved its case on the basis of circumstantial evidence comprising upon last seen, apprehending of appellant along with dead body of deceased, nexus between the appellant and the room where Zainab met her death as well as medical evidence.
Having arrived at such conclusion, we also took pain to peep through the defence put forth by the appellant in order to see that whether there is some circumstance, the legitimate benefit of which can be extended to him in any manner but have come across none. After pondering in detail upon the peculiar facts and circumstances of the case, we have arrived at conclusion that the case of appellant even does not call for awarding of alternate sentence of imprisonment of life under section 302 (b) PPC or some lesser sentence under sections 364-A or 376, PPC. In drawing such conclusion, besides not having any ambivalence regarding the guilt of appellant, we have also taken note of the miseries of Zainab extractable from unfortunate saga. The little angel after getting some money from her father proceeded to a nearby shop with the joyous feelings of purchasing some sweets which ended when the little flower was plucked and mutilated by the appellant through encroaching upon her modesty by savage act of rape and murder. Unfortunately, we are living in an era wherein the sexual lust of persons like Khalid Hameed (convict) has gone to an extent which has made even small and young girls vulnerable to such assaults. Though the courts and judges are not the reformists but still heavy duty is cast upon them to award exemplary punishments in proved cases of sexual violence to make it a bad bargain for the likeminded philanderers. In the given circumstances, we are swayed to uphold the conviction of death awarded to Khalid Hameed (appellant). Consequently, death sentence awarded to Khalid Hameed (appellant) on all the charges is maintained and Criminal Appeal No.328 of 2015 filed by him stands dismissed. Resultantly, Murder Reference No.26 of 2015 is answered in the AFFIRMATIVE and death sentence awarded to Khalid Hameed (convict) IS CONFIRMED.