' AFTAB HUSSAIN, C. J.-This order will dispose of Criminal Appeals Nos. 67/1, of 1981 and 24/L of 1982 since they arise out of the same order of acquittal of the respondent passed by Syed Mohammad Rafiq Shah, Additional Sessions Judge, Lahore on the 3rd of October 1981. The appeal of 1981 was filed by the complainant. Subsequently the other appeal bearing No, 24/L of 1982 was filed on behalf of the State. The State appeal has not been admitted so far. However all the three counsel, namely Mr. Rafiq Ahmad Bajwa for the complainant appellant, Mr. Ejaz Ali on behalf of the State and Mr. Iqbal Bhatti for the respondent were heard.
2. The charge against the respondent is under section 10 of Ordinance VII of 1979 for committing rape on Mst. Rajan deceased and under section 302, P. P. C. For murdering her. The prosecution case is that the respondent Taj Din is the husband of Mst. Fazlan daughter of Mst. Fatima Bibi, P. W.
4 and sister of Fazal Din, P. W.
9. Mst. Rajan deceased was also the daughter of Mst. Fatima and sister of Fazal. Din and consequently was the wife's sister of Taj Din, respondent. Taj Din alongwith his wife and Mst. Fatima Bibi alongwith her daughter Mst. Rajan were living in the same house which had two rooms. One room out of these two was occupied by Mst. Fatima Bibi and the other by Taj Din. On the 14th of November, 1980 Mst. Fatima Bibi had gone to the house of Ranjha Sheikh for offering condolence where Fazal Din, P. W. 9 her son, inquired from her as to who had been left in the house to look after Mst. Rajan. She told him that she was with Taj Din respondent. She also informed him that Mst.
Fazlan wife of Taj Din had gone that day to Sahiwal. She directed him to go to the house and inquire about Mst. Rajan.
3. Fazal Din, P. W. 9 went to the house of Mst. Fatima alongwith Siraj Din, P. W. 8 and Sadiq (not produced). When they reached the house they found that the door of the room was bolted from inside and the light was off. It was 9-00 or 9-15 p.m. At that time. They called out Taj Din respondent and Mst. Rajan 2 or 3 times and receiving no reply pushed the door and entered the room. Fazal Din struck a match and Siraj Din lighted a Diya with it. In the light they saw Mst. Rajan lying dead on a cot and found Taj Din respondent putting on his shal war. Blood was coming out from her nose and mouth. There were signs of scratches on her throat. A piece of cloth was in her mouth. Her shalwar was on her knees and her vagina was wet and had signs of semen. They took the piece of cloth from the mouth of the deceased and put it on the cot. They caught hold of Taj Din, respondent on whose face they saw signs of scratches as well. They raised hue and cry on hearing which. Mst.
Fatima Bibi, P. W. 4, Mohammad Shafi, P. W. 7 and Din Mohammad (not produced) also arrived there.
4. Fazal Din went alongwith Mohammad Shafi to inform the Police who met them at a distance of 2 Furlongs from the house. The statement of Fazal Din, P. W. 9 Exh. P. A. Was recorded by Mohammad Ajmal, S. I. P. W. 11 on the basis of which formal F. I. R. Exh. P. A./1 was recorded.
5. The Sub-Inspector on reaching the spot prepared the injuries statement. (Exh. P. K.) of Mst. Rajan deceased. He sent the dead body for autopsy to the hospital. He took into possession Cot, P. 3, Gadda, P. 4, piece of cloth P. 5 by memo. Exh. P. D. By another memo. Exh. P. F. He took into possession another piece of cloth P.
7. He also took into possession Shalwar P. 6 of Taj Din respondent by memo. Exh. P. E. Abbas Ali. Foot Constable had escorted the dead body to Mayo Hospital. After his return he handed over to the Sab-Inspector, Kurta P. 1 (blood-stained) Shalwar, P. 3 (blood-stained) of the deceased Mst. Rajan who took them into possession vide memo. Exh. P. C.
6. Dr. Tahir Anis, Deputy Police Surgeon, P. W. 10 conducted the postmortem examination of Mst.
Rajan at 12-30 p.m. On the 15th of November, 1980. He found that she was moderately built, her breasts had developed and auxiliary and public hair were scanty. Pupils were dilated and conjunctive were congested. Her face, palm and nails were livid. Blood-stained froth was present over nostrils and left side of mouth. She wore Shirt and Shalwar. He suspected on observation that Blood/semen stains were present over the internal part of the Shalwar. He found the following external injuries on her person :-
(1) Depressed contused area of skin 4 x 2 c. m. Over upper left front part of neck extending horizontally oblique.
(2) Depressed contused area of skin 4.5 x 2 c. m. Over upper right front part of neck extending horizontally oblique.
(3) There was congestion over mucosal surface of both lips with multiple seratches over left cheek, maxilla on both oral angles.
(4) Multiple contused abrasions front of both wrists. On dissection, soft tissues of neck were found markedly congested against Injuries No. 1 and 2.
' Membrane surface was congested, pleura showed pin-point bleeding spots. Inner surface of larynx and trachea was congested and showed free blood. Hyoid was intact. Both the lungs were generally congested ; Right side of heart contained blood, left was empty. There was venous engorgement, of blood vessels. Inner surface of mouth and pharyn were congested. Stomach contained 150 c. m semi-digested diet. Small intestines contained diet, large intestines and bladder were empty. Liver, spleen, and kidneys were congested. Hymen showed fresh tears. Area showed congestion and collection of blood. Uterus was empty.
7. He took two vaginal swa bs which were sent in a sealed container to the Chemical Examiner for detection of semen. He received the positive report Exh. P. H. From the Chemical Examiner and sent the same on 2-12-1980 to the D. I.-G. Police.
8. All the injuries according to the medical report had been caused by 'blunt means and were antemortem'. Injuries 1 and 2 were sufficient in ordinary course of nature to cause death through asphyxia by throttling and smothering. Probable time between injuries and death was a few minutes and that between death and post-mortem 12-18 hours.
9. On the same day at about 3-00 p.m. He examined Taj Din respondent who was brought in handcuffs by the Badami Bagh Police. There were multiple scratches over his left cheek in area 8 x 6 c. m. Which were caused by finger nails about 12 to 24 hours prior to the examination and were simple in nature. On his medical check up he did not find any reason which could suggest that the respondent was not capable of performing sexual intercourse.
10. The sealed parcels were given by Mohammad Ajmal, A. S. I. To Mohammad Akbar, Head Constable for safe custody in the Malkhana on the 15th of November, 1980. Mohammad Akbar handed over these two parcels to Mohammad Riaz, Constable, P. W. 5, on the 16th of November, 1980. The version as to what hapNned to these parcels is rather discrepant. According to Mohammad Akbar, P. W. 2 Mohammad Riaz, Constable brought back these parcels from the office of the Chemical Examiner on 17-11-1980 and kept them in the Malkhana in safe custody. As per statement of Mohammad Riaz, P. W. 5 who was not cross-examined he delivered them intact on the 16th of November, 1980 to the office of the Chemical Examiner. It appears from the Chemical Examiner's report,. Exh. P. M. That he had received two sealed parcels on the 16th of November, 1980 through Mohammad Riaz, Constable which contained Shalwar and a piece of cloth. The Shaiwar was found stained with semen while the piece of cloth was stained with blood and its pieces were sent to the Serologist for determination of origin of blood. The report of the Serologist, Exh. P. M.
Proves that the blood was human.
11. In view of Exh. P. M. And its entries the statement of Mohammad Riaz that he had delivered to the office of the Chemical Examiner the two sealed parcels the same day that he obtained them from the Malkhana, is correct and the evidence of Mohamtnad Akbar, P. W. 2 to the effect that these parcels were brought' back on the 17th of November, 1980 is either incorrect or he has confused the parcels of this case with parcels of some other case.
12. The prosecution case is based upon the evidence of Mst. Fatima Bibi, P. W. 4 mother of the deceased, Mohammad Shafi, P. W. 7 Siraj Din, P. W. 8 first cousin of the deceased, and Fazal Din, P.
W. 9 brother of the deceased. Fazal Din, P. W. 9 and Siraj Din, P. W. 8 explained that they came to the house on the day of occurrence at about 9-00 or 9-15 p.m. And found the room bolted from inside.
There was no light. Fazal Din called Mst. Rajan but finding no reply pushed the door and entered the room and on lighting a match stick with which a diya was lighted, found Taj Din standing on the cot and trying to wear his Shaiwar and found Mst. Rajan lying dead in the manner already stated in the abovementioned facts. Mst. Ghulam Fatima, P. W. 4 and Mohammad Shafi, P. W. 9 later on came to the spot after hearing the alarm from the house of Taj Din and found Taj Din being held by Siraj Din, Fazal Din and Sadiq and the deceased lying dead. Mohammad Shall is also the witness of recovery made by memo. Exh. P. D. Siraj Din proved the recovery memos. Of Exhs. P. E. And P. F. And stated that the recoveries were made in his presence.
13. The respondent in his statement under section 342, Cr. P. C. Denied that he had committed either of the offence. He stated that the entire story about his involvement was concocted and he was involved falsely because his in-laws disliked him due to his ugly face as he was one-eyed and of black colour and short statured. They wanted him to divorce his wife Mst. Fazlan. He was further examined by this Court on 18-8-1982 and he was asked about his being caught from the spot where the dead body was lying and that the Doctor found injuries on his face but he answered in the negative.
14. The witnesses denied the suggestions that the in-laws of the respondent disliked him on account of his alleged ugly face.
15. The respondent produced in defence Sher Mohammad, A. S. I. Beidanai Bagh, Lahore in order to prove that in some other cases registered by Mohammad Ajmal it was found on later investigations that they were incorrectly registered and that S. H.
0. P. W. 11 had been suspended from the service on the 27th of December, 1980. The witness first referred to F. I. R. No, 19 but it was a case which was initially investigated by Mohammad Safdar S. P.
And after investigation it was cancelled on 28.1-1981. No reference is made to anything done by Ajmal Qureshi. He then stated about F.I.R. No, 17 that it was registered against a number of persons out of whom only five were challaned and others were found innocent. The third case to which he referred is regarding an application sent by D.S.P. Naulakha from one Ahmad Din. Yet another application was received from D.S.P. Naulakha from the same Ahmad Din and it was sent to Incharge, Police Station, Badami Bagh who returned it after giving his remarks. Ajmal Qureshi was suspended on the 27th December, 1980 under orders of D. I.-G. Lahore but the reason of suspension was not given in the Roznamcha.
16. The learned Additional Sessions Judge referred to some discrepancies between the statements of the prosecution witnesses and on the basis of those discrepancies found the statements to be contradictory. He held that since the Investigation Officer (1) did not mention the scratches on the face of the respondent in Exh. D. C. (inspection note) and his report under section 173, Criminal Procedure Code, (2) had not examined the neighbours from the locality and (3) as per statement of D. W. 1 had been suspended from service on account of his being in the habit of involving innocent persons in criminal cases by colluding with parties, the case was not free from doubt.
Moreover all the witnesses belonged to the same Biradari and except Mohammad Shah, P. W. 7 all were closely related, the scratches could have been made on his face to implicate him in the case and for the same reason his Shalwar could also have been easily stained with semen, as such the guilt was not proved by strong and convincing evidence.
17. The order of acquittal is partly based upon misreading of the evidence. There is nothing in the statement of D. W. I that Mohammad Ajmal, P. W. 11 was suspended because of his being in the habit of involvin innocent persons in criminal cases in collusion with parties. It will be clew from the analysis of the evidence that it does not prove any such blame against Mohammad Ajmal, P. W.
11. None of the cases referred to by Sher Mohammad, D. W. 1 established any blame against Mohammad Ajmal. The mere fact that some F.I.R. Was recorded by him and that some of the persons in that F.I.R. Were found innocent on investigation and the case was cancelled B would not prove that Mohammad Ajmal had involved any person in that case illegally in collusion with any party. Even if this had been proved on record it would not have led to the conclusion or be presumed that the respondent must also have been falsely involved in the case.
18. It is true that no reference was made to the scratches in the document regarding the first inspection but the omission of this fact from the report under section 173, Cr. P. C. Is absolutely irrelevant since much before the submission of that report the respondent had been medically examined and the scratches had been found on his face. Similarly the finding that Shalwar might have also been stained with semen later is only conjectural. Moreover this is not even the case of the respondent.
19. The learned Additional Sessions Judge came to the conclusion that the statement of Fazal Din was recorded on the next day but this is also not fatal to the prosecution case because the mere fact that the police recorded E the statement next day although the body had already been sent by the police for post-mortem examination would not lead to the conclusion that the for( witnesses are not telling the truth.
20. According to Siraj Din he lighted a Diya in the room whereas Fazal Din lighted a match stick but the Investigating Officer, P. W. 11 stated that there was electric light in the room. This was held a ground for disbelieving the witnesses. But this fact by itself could not be taken against the prosecution since no such question whether the room was fitted with electricity we put to any other witness nor was any witness asked to explain as to why I was found necessary to light a match or a Diya when Fazal Din could easily have switched on the light. If such a question had been put either to P. W. 8 or to P. W. 2 they might have given an explanation. Tt is possible that the electricity might not be functioning at this time on account of some defect. Nothing turns on this.
21. The other defect pointed out is that when Fazal Din talked to Mst. Fatima she was in the courtyard of the house of Ranjha but he did not see Mohammad Shafi and Din Mohammad.
However Mohammad Shafi stated that he, Haji Din Mohammad and Mt Fatima were sitting on the road side when they heard the alarm. This is neither a contradiction nor at all material. Mohammad Shafi did not make a reference to the talk between Mst. Fatima and Fazal Din which means that at that time he was not present. He did not state how long he and Mst. Fatima had been sitting on the road side. It cannot be deemed to be a contradiction unless it was proved that when Fazal Din talked to Mst. Fatima she was sitting on the road side and not in the courtyard.
22. In view of the above discussion the finding of the learned Additional Sessions Judge cannot be sustained. We have considered the case very carefully. Mohammad Shafi is clearly an independent witness because he is not related to the parties. The others, if closely related to Mst. Rajan are also closely related by marriage to Taj Din respondent. There is no reason to believe in the absence of evidence that there was any disliking or bad blood between them and Taj Din before the occurrence. There is no reason why in these circumstances they should falsely involve the respondent] The evidence of these for persons is also quite straight forward and nothing material to make their veracity or testimony doubtful has come on the record.
23. It is proved that the respondent and Mst. Rajan deceased wer found in the same twirls which was closed. Mst. Rajan was lying dead an her Shalwar was on her knees while the respondent was found putting on hi Shalwar. The Chemical Examiner's report Exh. P. H. Proves that the deceased had been subjected to rape or Zina-bil-Jabr. The Chemical Examiner's report Exh. P. J. Further proves that the Shalwar of the respondent was also found stained with semen. The medical report proves that Mat. Rajan was murdered by strangulation and the injuries on her person' were sufficient in the ordinary course of nature to cause death. The case is proved to the hilt against the respondent.
24. The learned counsel for the respondent however, argued that there was no reason why Fazal Din should ask his mother as to who was left at the house and why should he take two persons with him. This argument would be of no avail since it is explained by Fazal Din that Taj Din sometimes went out to see the T. V. Meaning thereby that he was not a person to be relied upon for looking after a young girl who is left alone. As regards taking two persons with him, there is nothing strange in it because of the social contact and relationship between those two persons and Fazal Din. He might have asked them to come with him for no specific purpose but to have with him somebody to talk to.
25. He also argued that the First Information Report was recorded afte investigation. This appears to be correct but as already stated this cannot throw doubt in the circumstances of the case, on the testimony of the witnesses.
26. The learned counsel argued that according to the First Information Report all the three persons had entered the room after breaking the door but this was changed to pushing the door since no door was found to be broken. There is no merit in this objection since the explanation of Siraj Din, P.
W. 8 proves that the door was bolted from inside and when pushed by force the bolt was broken.
27. The absence of any other witness from the neighbourhood is hardly material in view of the fact that Taj Din was caught by Fazal Din and his two companions before Mst. Fatima and two other persons arrived there. It was conceded by Mohammad Shafi that other persons also came at the spot. The neighbours, if any, could only have come later after Taj Din had been caught by Fazal Din etc. Mohammad Shafi an independent witness proved the later facts.
28. The learned counsel submitted that this is a case of misjoinder of charges and there should have been two challans. This argument is without force since obviously the rape and the murder are simultaneous and part of the same transaction. Moreover the trial cannot be vitiated in view of section 537, Cr. P. C. By any error, omission or irregularity inter alia in the charge unless such error etc. Causes any failure of justice.
29. The learned counsel also submitted that an appeal against acquittal filed by the State was pending in the High Court but this would not take away the jurisdiction of this Court to deal with this appeal if it is otherwise competent.
30. Section 20 of the Offence of Zina (Enforcement of Hudood) Ordinance provides that the provision of the Cr. P. C. Shall apply mutatis mutandis in respect of cases under the Ordinance and if it appears in evidence that the offender had committed a different offence under any other law, he may, if the Court is competent to try that offence and award punishment therefore, be convicted and punished for that offence, provided that an offence under this Ordinance shall be triable by a Court of Session and an appeal shall lie to the Federal Shariat Court.
31. The offence under section 302, P. P. C. Is certainly an offence under a Law other than the Ordinance but the Sessions Judge being competent to try both the offence with which the respondent is charged, he could pass a sentence in .a case tried by him under the Ordinance for an offence under the P. P. C. Also. What he could do can also be competently done by an appellate Court. Now proviso 2 of subsection (I) of section 20 provides that "an offence punishable under this Ordinance shall be tribal by a Court of Session" and an appeal from an order of the Court of Session shall lie to th Federal Shariat Court. Proviso-1 of the same subsection permits the competent Court (Sessions Judge in the present case) to try the offence under another law also and award punishment thereunder. By virtue of this provision the trial and conviction by the Sessions Judge of any offence inter alia under the P. P. C. Becomes an offence punishable under this Ordinance for th purpose of appeal to the Federal Shariat Court. This can be the only reasonable interpretation of the two provisos of subsection (20) of the Ordinance. Any other interpretation would lead to an unreasonable result that the order of conviction under two different statutes as a result of one trial may be appealable in two different forums.
32. The established rules of interpretation even in cases where some other construction is available are as follows :-
1. In determining either the general object of the Legislature, or the meaning of its language in any particular passage, it is obvious that the intention which appears to be most in accord with convenience, reason, justice and legal principles should, in all cases of doubtful significance, be presumed to be the true one. "An intention to produce an unreasonable result is not to be imputed to a statute if there is some other construction available". Where to apply words literally would "defeat the obvious intention of the legislation and produce a wholly unreasonable result". We must "do some violence to the words" and so achieve that obvious intention and produce a rational construction. (Maxwell on the Interpretation of Statutes, 12th Edition, p. 199).
(2) Where possible a construction should be adopted which will facilitate the smooth working of the scheme of legislation established by the Act, which will avoid producing or prolonging artificiality in the law, and which will not produce anomalous result. (Ibid, p. 201).
(3) Not only are unreasonable or artificial or anomalous constructions to be avoided : it appears to be an assumption (often unspoken) of the Courts that where two possible constructions present themselves, the more reasonable one is to be chosen. (Ibid, p. 203).
33. It would lead to inconvenient, rather anomalous results if two different Courts-one on conviction under one statute and the other on conviction under another statute-are held to have jurisdiction to appreciate the same evidence in which there is possibility of arriving at different conclusions.
Such a construction should be avoided. We are of the view that these appeals are competent against the acquittal under section 10(3) of the Ordinance a well under section 302, P. P. C. The mere fact that an appeal has been filed before the High Court also would not take away the jurisdiction of the Court. It appears that the State has filed that appeal by way of abundan caution.
34. It was also argued that the question of arrest of the respondent and the injuries on his person was not put under section 342, Cr. P. C. To the respondent but this defect is removed since this Court examined the respondent again in the interest of justice under the above section and after writing\ his additional statement gave him an opportunity to produce defence which he declined to produce. None of the arguments of the learned counsel have, therefore, any force.
35. The respondent obviously committed Zina-bil-jabr with a girl who was found virgin by the doctor since he found the tears on her vagina quit fresh. It appears by the way her mouth was gagged and the respondent himself received injuries that the offence was committed in spite of resistance by this girl. The demands of justice can be met only if the extreme punish mint is awarded to the respondent. We, therefore, allow the complainant's appeal No, 67/L of 1981, set aside the order of acquittal and direct that for the offence under section 302, P. P. C. He shall be hanged by the neck till he is dead and for the offence under section 10(3) of Ordinance VII of 197) he shall undergo rigorous imprisonment for a period of 25 years and whipping numbering 30 stripes. The punishment of whipping shall be administered at some place in the Bazar, Badami Bagh, Lahore and the sentence of imprisonment shall, start if as a result of appeal before the Supreme Court if any, the sentence of death is set aside.
' The State's Appeal No, 24/L of 1982 thus stands disposed of.
' A copy of the judgment is given to the respondent and be is directed to file an appeal in the Supreme Court of Pakistan, if he so wishes.